29 USCS § 141
UNITED STATES CODE SERVICE
Copyright 2000, LEXIS Law Publishing, a division of Reed Elsevier Inc.
All rights reserved.
Copyright 2000, LEXIS Law Publishing, a division of Reed Elsevier Inc.
All rights reserved.
*** CURRENT THROUGH P.L. 106-272, APPROVED 9/22/00 ***
*** WITH THE EXCEPTION OF P.L. 106-271 ***
*** WITH THE EXCEPTION OF P.L. 106-271 ***
TITLE 29. LABOR
CHAPTER 7. LABOR-MANAGEMENT RELATIONS
GENERAL PROVISIONS
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TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION
CHAPTER 7. LABOR-MANAGEMENT RELATIONS
GENERAL PROVISIONS
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TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION 29 USCS § 141 (2000)
§ 141. Short title; Congressional declaration of purpose and policy
(a) This Act may be cited as the "Labor Management Relations Act, 1947."
(b) Industrial strife which interferes with the normal flow of commerce and with the full production of articles and commodities for commerce, can be avoided or substantially minimized if employers, employees, and labor organizations each recognize under law one another's legitimate rights in their relations with each other, and above all recognize under law that neither party has any right in its relations with any other to engage in acts or practices which jeopardize the public health, safety, or interest.
It is the purpose and policy of this Act, in order to promote the full flow of commerce, to prescribe the legitimate rights of both employees and employers in their relations affecting commerce, to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other, to protect the rights of individual employees in their relations with labor organizations whose activities affect commerce, to define and proscribe practices on the part of labor and management which affect commerce and are inimical to the general welfare, and to protect the rights of the public in connection with labor disputes affecting commerce.
HISTORY:
(June 23, 1947, ch 120, § 1, 61 Stat. 136.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text:
"This Act", referred to in this section, is Act June 23, 1947, ch 120, 61 Stat. 136, the Labor Management Relations Act, 1947, which appears as 29 USCS §§ 141-144, 151-158, 159-167, 171-183, 185-187, and 557.
Other provisions:
National Commission on Technology, Automation, and Economic Progress. Act Aug. 19, 1964, P.L. 88-444, 78 Stat. 462, provided for establishment of a National Commission on Technology, Automation, and Economic Progress to study, make recommendations, and submit final report by January 1, 1966. The Commission ceased 30 days after making its report.
National Commission for Industrial Peace. Ex. Or. No. 11710 of April 4, 1973, 38 Fed. Reg. 35565; Ex. Or. No. 11729 of July 12, 1973, 38 F. R. 18863, was revoked by Ex. Or. No. 11823 of Dec. 16, 1974, 39 Fed. Reg. 43529. Such Order established the National Commission for Industrial Peace.
President's Labor-Management Committee. Ex. Or. No. 11809 of Oct. 2, 1974, 39 Fed. Reg. 35565, formerly set out as a note under this section, was revoked by Ex. Or. No. 11948 of Dec. 20, 1976, 41 Fed. Reg. 55705, which appears as 5 App USCS § 14 note. Such Order established the President's Labor-Management Committee.
NOTES:
CODE OF FEDERAL REGULATIONS
National Labor Relations Board-Administrative regulations, 29 CFR Part 100.
RESEARCH GUIDE
Am Jur:
48 Am Jur 2d, Labor and Labor Relations §§ 414, 546, 1291.
Forms:
14 Fed Procedural Forms L Ed, Removal of Actions (1995) § 58:19.
24A Am Jur Pl & Pr Forms (1999), Veterans and Veterans' Laws, § 43.
Annotations:
State power to enjoin picketing as affected by federal labor relations acts. 2 L Ed 2d 1630, 15 L Ed 2d 941.
Federal Labor Relations Acts as affecting state court jurisdiction of suits between member of labor union and union. 10 L Ed 2d 1200.
State power to enjoin picketing as affected by Federal Labor Relations Act--Supreme Court Cases. 56 L Ed 2d 813.
State Court jurisdiction as pre-empted by National Labor Relations Act as amended (29 USCS §§ 141 et seq.). 75 L Ed 2d 988.
INTERPRETIVE NOTES AND DECISIONS
I. IN GENERAL
1. Generally
2. Constitutionality
3. Purpose, generally
4. --National Labor Relations Board
5. --Equalization of economic power
6. --Promotion and protection of right of organization
7. --Promotion of collective bargaining
8. --Promotion of arbitration of disputes
9. --Avoidance of labor strife
10. --Protection of freedom to strike and picket
11. --Preservation of management prerogatives
12. --Protection of union members
13. Construction
14. Relationship with other laws
II. PREEMPTION
A. In General
15. Generally
16. Scope of federal labor law
17. Scope of NLRB jurisdiction, generally
18. Primary NLRB jurisdiction, generally
19. --Particular circumstances
20. State police power regulations
B. State Legislation
21. Generally
22. Labor relations statutes, generally
23. --Particular legislation
24. Statutes regulating strikes
25. --Strikes against public utilities
26. Statutes regulating jurisdictional strikes
27. Statutes regulating union-security arrangements
28. Statutes requiring licensing of union agents
29. Statutes regulating association with unions of persons convicted of criminal offenses
30. Wage payment statutes
31. Unemployment compensation statutes
32. Statutes barring age discrimination
33. Antitrust laws
34. Miscellaneous
C. State Judicial and Administrative Action
1. In General
35. Generally
36. Jurisdiction
37. Damages
2. Torts
38. Generally
39. Infliction of emotional distress
40. Interference with rights under collective bargaining agreement by union
41. Wrongful death
42. Negligence
43. Interference with contractual rights
44. Defamation
3. Union Conduct
45. Unfair labor practices, generally
46. --Particular activities
47. Violence
48. --Threats
49. Mass picketing
50. Peaceful picketing, generally
51. --Construction sites
52. --Foreign flag vessels
53. --Federal funded projects
54. --Agricultural labor
55. --Miscellaneous
56. Secondary activity
57. --Picketing
58. --Boycotts
59. Activity for union-security arrangement
60. --Closed-shop agreement
61. --Effect of state right to work laws
62. Union interference with employment, generally
63. --Damages
64. --Miscellaneous
65. Union breach of duty of fair representation
66. Wrongful union expulsion or exclusion
67. Wrongful union discipline
4. Miscellaneous
68. Organizational activity
69. Recognitional activity
70. Certification of bargaining representatives
71. Breach of collective bargaining agreement
72. Wrongful discharge
73. Contempt of court
III. PRACTICE AND PROCEDURE
A. In General
74. Determination of jurisdiction
B. Remedies for Improper State Proceedings
75. Injunction
76. Declaratory judgment
77. Prohibition
I. IN GENERAL
1. Generally
To the extent that any relevant corpus of "national labor policy" exists, it is in the law developed during the administering of the most comprehensive national labor scheme, the Labor Management Relations Act (29 USCS §§ 141 et seq.), which Act represents the only existing congressional expression as to the premissible bounds of economic combat. Brotherhood of R. Trainmen v Jacksonville Terminal Co. (1969) 394 US 369, 22 L Ed 2d 344, 89 S Ct 1109, 70 BNA LRRM 2961, 59 CCH LC P 13362, reh den (1969) 394 US 1024, 23 L Ed 2d 51, 89 S Ct 1622.
Congress intended that the Labor-Management Relations Act provide a statutory remedy for American concerns and American unions, but not foreign ones. Navios Corp. v National Maritime Union (1966, CA3 Pa) 359 F2d 853, 62 BNA LRRM 2128, 53 CCH LC P 11203, cert den (1966) 385 US 900, 17 L Ed 2d 132, 87 S Ct 205, 63 BNA LRRM 2282, 54 CCH LC P 11497.
Generally, federal law governs parties' rights in actions under LMRA. Employee Painters' Trust v J & B Finishes (1996, CA9 Wash) 77 F3d 1188, 96 CDOS 1354, 96 Daily Journal DAR 2309.
This act represents abandonment of policy of affirmatively encouraging spread of union organization and collective bargaining. Le Baron v Los Angeles Bldg. & Constr. Trades Council (1949, DC Cal) 84 F Supp 629, 24 BNA LRRM 2131, affd (1950, CA9 Cal) 185 F2d 405, 27 BNA LRRM 2184, 19 CCH LC P 66088, vacated (1951) 342 US 802, 96 L Ed 607, 72 S Ct 25, 28 BNA LRRM 2625, 20 CCH LC P 66548.
The passage of this act [§§ 141 et seq. of this title] did not deprive a court of jurisdiction of a case filed under the Labor Relations Act [§§ 151 et seq. of this title] before amendment. Harris v National Union of Marine Cooks & Stewards (1950) 98 Cal App 2d 733, 221 P2d 136, 26 BNA LRRM 2493, 18 CCH LC P 65954; Natelson Bros. v New York State Labor Relations Bd. (1949) 194 Misc 635, 88 NYS2d 129, 16 CCH LC P 65070.
Despite fact that federal agency employer is not subject to Labor Management Relations Act, principles of arbitration developed in context of private labor disputes may still be applied to conflicts in which agency is involved. Tennessee Valley Trade & Labor Council v TVA (1998, MD Tenn) 991 F Supp 917.
2. Constitutionality
This act draws its validity from the Commerce Clause of the Federal Constitution [Const. Art 7 & 8, cl. 3], and therefore affects the substantive law of the states when questions arise concerning the rights and duties of employers and employees who are engaged in interstate commerce. Markham & Callow, Inc. v International Woodworkers of America, etc. (1943) 170 Or 517, 135 P2d 727, 7 CCH LC P 61574.
3. Purpose, generally
Congress, in the NLRA, expressed its judgment in favor of uniform federal regulation of labor relations matters affecting interstate commerce, and, congressional power in this area of interstate commerce being plenary, its judgment must be respected whatever objections there may be to creation of a no-man's land in which state action is barred and federal action is not required. Guss v Utah Labor Relations Bd. (1957) 353 US 1, 1 L Ed 2d 601, 77 S Ct 598, 39 BNA LRRM 2567, 32 CCH LC P 70563.
The purpose of the Act is remedial and not punitive, although the awarding of interest along with back pay is not violative of this principle, where it is awarded merely to make the employee whole. Philip Carey Mfg. Co., Miami Cabinet Div. v NLRB (1964, CA6) 331 F2d 720, 55 BNA LRRM 2821, 49 CCH LC P 18855, cert den (1964) 379 US 888, 13 L Ed 2d 92, 85 S Ct 159, 57 BNA LRRM 2307, 50 CCH LC P 19285.
The Act is remedial rather than punitive and contemplates protection of public rights which it creates and defines. NLRB v Brown Lumber Co. (1964, CA6) 336 F2d 641, 57 BNA LRRM 2151, 50 CCH LC P 19242.
The National Labor Relations Act is remedial, not punitive, and in the case of an unfair labor practice, the purpose of the Act is to restore the situation as nearly as possible to the status quo. Trinity Valley Iron & Steel Co. v NLRB (1969, CA5) 410 F2d 1161, 71 BNA LRRM 2067, 60 CCH LC P 10069.
Congressional purpose of Labor Management Relations Act of 1947 (29 USCS § 141) was to establish policy which would protect rights of employees, employers and general public from dislocations of commerce which might be engendered by commission of unfair labor practices. Hoffman on behalf of NLRB v Beer Drivers & Salesmen's Local Union , etc. (1976, CA9 Cal) 536 F2d 1268, 92 BNA LRRM 3302, 79 CCH LC P 11489, 21 FR Serv 2d 1442.
Announced purposes of Labor Management Relations Act (29 USCS § 141) are to prescribe legitimate rights of employees and employers, to prevent interference by either with legitimate rights of other, and to define and proscribe practices on part of labor and management which are inimical to general welfare. National Union of Hospital & Health Care Employees v Carey (1977, CA2 NY) 557 F2d 278, 94 BNA LRRM 3106, 81 CCH LC P 13132.
Purpose of LMRA (29 USCS §§ 141 et seq.) is to promote full flow of commerce and to protect rights of public in connection with labor disputes affecting commerce. Sears, Roebuck & Co. v San Diego County Dist. Council of Carpenters (1976) 17 Cal 3d 893, 132 Cal Rptr 443, 553 P2d 603, 93 BNA LRRM 2161, 80 CCH LC P 11983, revd on other grounds (1978) 436 US 180, 56 L Ed 2d 209, 98 S Ct 1745, 98 BNA LRRM 2282, 83 CCH LC P 10582, on remand (1979) 25 Cal 3d 317, 158 Cal Rptr 370, 599 P2d 676, 102 BNA LRRM 2312, 87 CCH LC P 55208, cert den (1980) 447 US 935, 65 L Ed 2d 1130, 100 S Ct 3038, 111 BNA LRRM 3064, 90 CCH LC P 55283.
4. --National Labor Relations Board
One of the purposes leading to the creation of boards such as the NLRB is to have decisions based on evidential facts under the particular statute made by experienced officials with an adequate appreciation of the complexities of the subject which is entrusted to their administration. International Union of Electrical, etc. v NLRB (1961) 366 US 667, 6 L Ed 2d 592, 81 S Ct 1285, 48 BNA LRRM 2210, 42 CCH LC P 16966.
One of the purposes of the Act was to afford both employer and employee a public tribunal in which a prompt decision would be given to determine with whom the employer should bargain. International Brotherhood of Teamsters, etc. v International Union of United Brewery, etc. (1939, CA9 Cal) 106 F2d 871, 5 BNA LRRM 844, 1 CCH LC P 18437.
The labor board was created to avoid, through adjustment, serious labor disputes which, if they reach strike stage, necessarily hurt all parties, public most; it was created so that employees with complaints might have neutral tribunal pass on them, and, if necessary, correct them. NLRB v Barrett Co. (1941, CA7) 120 F2d 583, 8 BNA LRRM 757, 4 CCH LC P 60488.
Purpose of the Act was to establish a single paramount administrative or quasi-judicial authority in connection with development of federal American law regarding collective bargaining. Amazon Cotton Mill Co. v Textile Workers Union (1948, CA4 NC) 167 F2d 183, 21 BNA LRRM 2605, 14 CCH LC P 64443; Textile Workers Union v Arista Mills Co. (1951, CA4 NC) 193 F2d 529, 29 BNA LRRM 2264, 20 CCH LC P 66694.
National Labor Relations Act clearly expresses congressional desire to channel problem-solving through expert administrative body with hope that some grievances may be adjusted without resort to courtroom. Guerra v Manchester Terminal Corp. (1974, CA5 Tex) 498 F2d 641, 8 BNA FEP Cas 433, 8 CCH EPD P 9584, 74 CCH LC P 10248, reh den (1974, CA5 Tex) 503 F2d 567 and (ovrld on other grounds by Bhandari v First Nat. Bank of Commerce (1987, CA5 La) 829 F2d 1343, 45 BNA FEP Cas 126, 44 CCH EPD P 37512, 99 ALR Fed 817).
Manifest object of National Labor Relations Act (29 USCS §§ 151 et seq.) is to furnish single tribunal to hear and determine in first instance labor disputes affecting interstate commerce with adequate and exclusive opportunity for judicial review in designated court. Keller v American Cyanamid Co. (1942) 132 NJ Eq 210, 28 A2d 41, 11 BNA LRRM 567.
5. --Equalization of economic power
A primary purpose of the National Labor Relations Act is to redress the perceived imbalance of economic power between labor and management. American Ship Bldg. Co. v NLRB (1965) 380 US 300, 13 L Ed 2d 855, 85 S Ct 955, 58 BNA LRRM 2672, 51 CCH LC P 19594.
The purpose of federal labor legislation is not to artificially create new economic forces, but to reconcile and equalize the power of competing economic forces within society to encourage voluntary agreements governing labor-management relations and prevent industrial strife. Pittsburgh Plate Glass Co., Chemical Div. v NLRB (1970, CA6) 427 F2d 936, 74 BNA LRRM 2425, 63 CCH LC P 10945, affd (1971) 404 US 157, 30 L Ed 2d 341, 92 S Ct 383, 1 EBC 1019, 78 BNA LRRM 2974, 66 CCH LC P 12254.
6. --Promotion and protection of right of organization
The basic thesis for the whole of modern thought in the area of labor relations is that the representative of the employees must not be under the complete control of the employer, so that application of the doctrine of respondeat superior must be carefully delineated and applied with perceptive selectivity. Lummus Co. v NLRB (1964) 119 US App DC 229, 339 F2d 728, 56 BNA LRRM 2425, 49 CCH LC P 19051.
To effectuate its policy of insulating employees' jobs from their organizational rights, the Act aims at every practice, act, source or institution which in fact is used to encourage and discourage union membership by discrimination in regard to hire or tenure, term or condition of employment. Lummus Co. v NLRB (1964) 119 US App DC 229, 339 F2d 728, 56 BNA LRRM 2425, 49 CCH LC P 19051.
The provisions of 29 USCS §§ 151 et seq. are not designed merely to protect a particular representation election or organizational campaign, but are designed to protect employees in the exercise of their organizational rights, and such protection cannot be affected merely because a particular labor organization has chosen an immediate election rerun rather than to await enforcement of NLRB order that an employer cease and desist from certain anti-union misconduct which had occurred prior to a previous election. NLRB v Raytheon Co. (1970) 398 US 25, 26 L Ed 2d 21, 90 S Ct 1547, 74 BNA LRRM 2177, 62 CCH LC P 10883, on remand (1971, CA9) 445 F2d 272, 77 BNA LRRM 2726, 65 CCH LC P 11847.
The purpose of the Act is to encourage the free organization of employees unmolested by interference, restraint, or coercion of the employer. NLRB v American Car & Foundry Co. (1947, CA7) 161 F2d 501, 20 BNA LRRM 2048, 12 CCH LC P 63723.
The purpose of the Act is to leave the employees with a free choice, and not to subject them to the compulsion of their employer, outside labor union, the NLRB, or anybody else as to what is their best interest in joining or forming labor organizations. NLRB v Thompson Products, Inc. (1947, CA6) 162 F2d 287, 20 BNA LRRM 2291, 12 CCH LC P 63806.
The primary purpose of the enactment was to give employees the right to self-organization and the right to bargain collectively through representatives of their own choosing. NLRB v Thompson Products, Inc. (1947, CA6) 162 F2d 287, 20 BNA LRRM 2291, 12 CCH LC P 63806.
The public policy of the United States expressed through the Act does not limit the choice of employees to any particular representation, nor does it exclude from their choice the representative of any other group of employees. Wilson & Co. v NLRB (1947, CA8) 162 F2d 310, 20 BNA LRRM 2261, 12 CCH LC P 63823.
The act was primarily enacted for the benefit of employees and not for unions, the latter deriving their authority from the employees when selected as their bargaining agent, rather than from the law. Inland Steel Co. v NLRB (1948, CA7) 170 F2d 247, 1 EBC 1008, 22 BNA LRRM 2506, 15 CCH LC P 64737, 12 ALR2d 240, affd (1950) 339 US 382, 94 L Ed 925, 70 S Ct 674, 26 BNA LRRM 2084, 18 CCH LC P 65760, reh den (1950) 339 US 990, 94 L Ed 1391, 70 S Ct 1017.
The avowed purpose of the Act was not to favor or promote unions as such, but was to promote and protect rights of individual employees to join or not to join unions and to be free from coercion and interference either way. NLRB v Augusta Chemical Co. (1951, CA5) 187 F2d 63, 27 BNA LRRM 2350, 19 CCH LC P 66177.
The statute was enacted to protect not the rights of unions to obtain representation contracts but the rights of employees to be represented by a bargaining agent of their own choosing and under all circumstances, these rights must be protected and preserved. NLRB v Red Arrow Freight Lines, Inc. (1952, CA5) 193 F2d 979, 29 BNA LRRM 2390, 21 CCH LC P 66755, petition den (1954, CA5) 213 F2d 260, 34 BNA LRRM 2167, 25 CCH LC P 68394.
Federal labor law was passed to protect the rights of employees, and not the rights of contesting unions. NLRB v Valentine Sugars, Inc. (1954, CA5) 211 F2d 317, 33 BNA LRRM 2679, 25 CCH LC P 68200.
The policy of the Act is to insulate employees' jobs from their organizational rights. NLRB v Spector Freight System, Inc. (1960, CA8) 273 F2d 272, 45 BNA LRRM 2388, 38 CCH LC P 66085, cert den (1960) 362 US 962, 4 L Ed 2d 877, 80 S Ct 879, 46 BNA LRRM 2033; Lummus Co. v NLRB (1964) 119 US App DC 229, 339 F2d 728, 56 BNA LRRM 2425, 49 CCH LC P 19051.
Central purpose of National Labor Relations Act is to protect employees self-organization and process of collective bargaining from disruptive interferences by employers. Mobil Oil Corp. v NLRB (1973, CA7) 482 F2d 842, 83 BNA LRRM 2823, 71 CCH LC P 13841.
In controversies between an employer and a union, the paramount purpose of the Act is to secure to the employees freedom of choice in their representative. NLRB v Shawnee Plastics, Inc. (1974, CA6) 492 F2d 869, 85 BNA LRRM 2308, 73 CCH LC P 14236, cert den (1974) 419 US 838, 42 L Ed 2d 65, 95 S Ct 67, 87 BNA LRRM 2398.
Fundamental policy of National Labor Relations Act (29 USCS §§ 151 et seq.) is self-determination, employees being entitled to be represented by union they themselves select. Metromedia, Inc., KMBC-TV v NLRB (1978, CA8) 586 F2d 1182, 99 BNA LRRM 2743, 84 CCH LC P 10868, later proceeding (1980) 247 NLRB 392, 103 BNA LRRM 1155, 1980 CCH NLRB P 16674.
7. --Promotion of collective bargaining
The fundamental purpose of the National Labor Relations Act [USCS §§ 141 et seq. of this title] is private bargaining under government supervision, without compulsion. H. K. Porter Co. v NLRB (1970) 397 US 99, 25 L Ed 2d 146, 90 S Ct 821, 73 BNA LRRM 2561, 62 CCH LC P 10696.
The purpose of the Act was not to guarantee employees the right to do as they please but to guarantee them the right of collective bargaining for the purpose of preserving industrial peace. NLRB v Illinois Bell Tel. Co. (1951, CA7) 189 F2d 124, 28 BNA LRRM 2079, 19 CCH LC P 66338, cert den (1951) 342 US 885, 96 L Ed 663, 72 S Ct 173, 29 BNA LRRM 2111; NLRB v Ford Radio & Mica Corp. (1958, CA2) 258 F2d 457, 42 BNA LRRM 2620, 35 CCH LC P 71748.
The Act was directed primarily to the prevention of unfair labor practices to open the way for free collective bargaining rather than the regulation of the course of such bargaining and settlement of disputes. Williams v Yellow Cab Co. (1952, CA3 Pa) 200 F2d 302, 31 BNA LRRM 2152, 22 CCH LC P 67280, cert den (1953) 346 US 840, 98 L Ed 361, 74 S Ct 52.
It was the purpose of the Act that execution of collective bargaining agreements between employers and employees would result through the process of good faith bargaining, although the Act does not compel the making of any agreement whatsoever between the employer and the employee. United States Steel Corp. v Nichols (1956, CA6 Ohio) 229 F2d 396, 37 BNA LRRM 2420, 29 CCH LC P 69713, 56 ALR2d 980, cert den (1956) 351 US 950, 100 L Ed 1474, 76 S Ct 846, 38 BNA LRRM 2159.
The purpose of the statute was to compel employees to bargain collectively with their employees to the end that employment contracts binding on both parties should be made. International Brotherhood of Teamsters, etc. v W. L. Mead, Inc. (1956, CA1 Mass) 230 F2d 576, 37 BNA LRRM 2679, 29 CCH LC P 69802, cert dismd (1956) 352 US 802, 1 L Ed 2d 37, 77 S Ct 21.
A primary purpose of national labor relations law is to settle labor problems by collective bargaining. Ramsey v NLRB (1964, CA7) 327 F2d 784, 55 BNA LRRM 2441, 49 CCH LC P 18749, cert den (1964) 377 US 1003, 12 L Ed 2d 1052, 84 S Ct 1938, 56 BNA LRRM 2544, 49 CCH LC P 19070, reh den (1964) 379 US 874, 13 L Ed 2d 82, 85 S Ct 26, 50 CCH LC P 19259.
The prime purpose of the Act is to foster industrial peace through collective bargaining. Modern Plastics Corp. v NLRB (1967, CA6) 379 F2d 201, 65 BNA LRRM 2600, 55 CCH LC P 12004.
It is the Labor-Management Relations Act, and not the Constitution, which imposes upon an employer a duty to bargain collectively with an exclusive bargaining agent, and the economic activities of a group of persons who associate together to achieve a common purpose, as opposed to the free speech activities of such group, are not protected by the First Amendment, but are protected as a matter of legislative policy. Hanover Township Federation of Teachers v Hanover Community School Corp. (1972, CA7 Ind) 457 F2d 456, 79 BNA LRRM 2299, 67 CCH LC P 12352.
The Taft-Hartley amendments [§§ 141 et seq. of this title] represent an abandonment of the policy of affirmatively encouraging the spread of union organization and collective bargaining. Le Baron v Los Angeles Bldg. & Constr. Trades Council (1949, DC Cal) 84 F Supp 629, 24 BNA LRRM 2131, affd (1950, CA9 Cal) 185 F2d 405, 27 BNA LRRM 2184, 19 CCH LC P 66088, vacated on other grounds (1951) 342 US 802, 96 L Ed 607, 72 S Ct 25, 28 BNA LRRM 2625, 20 CCH LC P 66548.
8. --Promotion of arbitration of disputes
Congressional policy favors settlement of disputes through machinery of arbitration. Sinclair Refining Co. v Atkinson (1961, CA7 Ind) 290 F2d 312, 48 BNA LRRM 2045, 42 CCH LC P 16905, affd (1962) 370 US 195, 8 L Ed 2d 440, 82 S Ct 1328, 50 BNA LRRM 2420, 45 CCH LC P 17674 (ovrld on other grounds by Boys Markets, Inc. v Retail Clerks Union (1970) 398 US 235, 26 L Ed 2d 199, 90 S Ct 1583, 74 BNA LRRM 2257, 62 CCH LC P 10902) and affd in part and revd in part on other grounds (1962) 370 US 238, 8 L Ed 2d 462, 82 S Ct 1318, 50 BNA LRRM 2433, 45 CCH LC P 17675.
An increasingly recognized and important policy as a vital part of the collective bargaining process is encouragement of arbitration. Ramsey v NLRB (1964, CA7) 327 F2d 784, 55 BNA LRRM 2441, 49 CCH LC P 18749, cert den (1964) 377 US 1003, 12 L Ed 2d 1052, 84 S Ct 1938, 56 BNA LRRM 2544, 49 CCH LC P 19070, reh den (1964) 379 US 874, 13 L Ed 2d 82, 85 S Ct 26, 50 CCH LC P 19259.
It is abuse of discretion for NLRB to refuse to defer to arbitration award in face of policy favoring arbitration, expressed in 29 USCS § 703(d), where findings of arbitrator may arguably be characterized as not inconsistent with NLRB policy. NLRB v Pincus Bros., Inc.-Maxwell (1980, CA3) 620 F2d 367, 104 BNA LRRM 2001, 88 CCH LC P 12013.
Under 29 USCS § 141, dispute over whether new position was supervisory and not within scope of collective bargaining unit is properly subject of arbitration under collective bargaining agreement and jurisdiction in no way acts as bar to arbitration of such labor grievance and arbitrable matters can properly proceed directly to arbitration, even if they raise questions that are within exclusive jurisdiction of NLRB. Times Pub. Co. v Erie Newspaper Guild, etc. (1981, WD Pa) 527 F Supp 1131.
9. --Avoidance of labor strife
This act (29 USCS §§ 141 et seq.) was designed to lessen industrial disputes. Inland Steel Co. v NLRB (1948, CA7) 170 F2d 247, 1 EBC 1008, 22 BNA LRRM 2506, 15 CCH LC P 64737, 12 ALR2d 240, affd (1950) 339 US 382, 94 L Ed 925, 70 S Ct 674, 26 BNA LRRM 2084, 18 CCH LC P 65760, reh den (1950) 339 US 990, 94 L Ed 1391, 70 S Ct 1017.
The fundamental purposes of the Act are to protect commerce from interruptions brought about by strife between employers and workers, and to stabilize labor relations by promoting the principle and practice of collective bargaining. NLRB v Flotill Products, Inc. (1950, CA9) 180 F2d 441, 25 BNA LRRM 2463, 17 CCH LC P 65622.
The purpose of the Act is to promote peaceful settlements of disputes by providing legal remedies for the invasion of employees' rights. NLRB v Sebastopol Apple Growers Union (1959, CA9) 269 F2d 705, 44 BNA LRRM 2755, 38 CCH LC P 65738.
The Act embodies a legislative solution to problems arising from labor disputes which lead to strikes or lockouts and which, because of their serious impact upon national health and safety, may give rise to national emergencies. United States v United Steelworkers of America (1959, CA3 Pa) 271 F2d 676, 45 BNA LRRM 2031, 45 BNA LRRM 2043, 45 BNA LRRM 2044, 38 CCH LC P 65856, affd (1959) 361 US 39, 4 L Ed 2d 12, 80 S Ct 1, 10 Ohio Ops 2d 180, 82 Ohio L Abs 457, 45 BNA LRRM 2066, 38 CCH LC P 65904.
Congressional intent shown in 29 USC § 141(b) is, first, to protect the rights of both employers and employees and, second, to bring an end to industrial strife which affects commerce to such a degree as to menace the general welfare. United States v United Steelworkers of America (1959, CA3 Pa) 271 F2d 676, 45 BNA LRRM 2031, 45 BNA LRRM 2043, 45 BNA LRRM 2044, 38 CCH LC P 65856, affd (1959) 361 US 39, 4 L Ed 2d 12, 80 S Ct 1, 10 Ohio Ops 2d 180, 82 Ohio L Abs 457, 45 BNA LRRM 2066, 38 CCH LC P 65904.
The Act is based upon the principle of promoting industrial peace through collective bargaining and an orderly settlement of disputes. Plasti-Line, Inc. v NLRB (1960, CA6) 278 F2d 482, 46 BNA LRRM 2291, 40 CCH LC P 66555.
One of fundamental policies of the NLRA is to secure industrial peace and prevent strife and disruption by encouraging negotiation and peaceful procedure for the attempted settlement of demands of a party. NLRB v Washington Aluminum Co. (1961, CA4) 291 F2d 869, 48 BNA LRRM 2558, 43 CCH LC P 17039, revd on other grounds (1962) 370 US 9, 8 L Ed 2d 298, 82 S Ct 1099, 50 BNA LRRM 2235, 45 CCH LC P 17637.
The Act is designed to promote industrial peace by encouraging making of voluntary agreements governing relations between unions and employers, and the making of voluntary labor agreements is encouraged by protecting employees' rights to organize for collective bargaining and by imposing on labor and management mutual obligations to bargain collectively. General Electric Co. v Callahan (1961, CA1 Mass) 294 F2d 60, 48 BNA LRRM 2929, 43 CCH LC P 17144, cert dismd (1962) 369 US 832, 7 L Ed 2d 840, 82 S Ct 851, 44 CCH LC P 17553.
The ultimate objective of the Act is industrial peace. NLRB v Holly-General Co., Div. of Siegler Corp. (1962, CA9) 305 F2d 670, 50 BNA LRRM 2676, 45 CCH LC P 17717.
The basic purpose of the Act is to promote industrial peace through collective bargaining and an orderly settlement of disputes. Servette, Inc. v NLRB (1962, CA9) 310 F2d 659, 51 BNA LRRM 2621, 46 CCH LC P 17944, revd on other grounds (1964) 377 US 46, 12 L Ed 2d 121, 84 S Ct 1098, 55 BNA LRRM 2957, 49 CCH LC P 18899.
The purpose of the NLRA is to promote industrial peace, and policy-making decisions of the NLRB favoring employees supporting a rival union over those loyal to the incumbent would seem to have the opposite effect. Armco Steel Corp. v NLRB (1965, CA6) 344 F2d 621, 59 BNA LRRM 2077, 51 CCH LC P 19676.
10. --Protection of freedom to strike and picket
The obvious purpose of the Labor Management Relations Act is not to grant a dispensation for the strike but to outlaw strikes when undertaken to enforce what the act calls unfair practices. International Union, U. A. W. A. v Wisconsin Employment Relations Bd. (1949) 336 US 245, 93 L Ed 651, 69 S Ct 516, 23 BNA LRRM 2361, 16 CCH LC P 64992, reh den (1949) 336 US 970, 93 L Ed 1121, 69 S Ct 935 and (ovrld on other grounds by International Asso. of Machinists & Aerospace Workers v Wisconsin Employment Relations Com. (1976) 427 US 132, 49 L Ed 2d 396, 96 S Ct 2548, 92 BNA LRRM 2881, 78 CCH LC P 11476).
Although the Act encourages negotiation and seeks to reduce industrial strife, it does not forbid industrial strife. Textile Workers Union v NLRB (1955) 97 US App DC 35, 227 F2d 409, 36 BNA LRRM 2778, 29 CCH LC P 69515, cert den (1956) 352 US 864, 1 L Ed 2d 73, 77 S Ct 90, 38 BNA LRRM 2757.
Although the Act encourages negotiation and seeks to reduce industrial strife, it does not forbid industrial strife aside from specific conduct, such as jurisdictional strikes and secondary boycotts. Textile Workers Union v NLRB (1955) 97 US App DC 35, 227 F2d 409, 36 BNA LRRM 2778, 29 CCH LC P 69515, cert den (1956) 352 US 864, 1 L Ed 2d 73, 77 S Ct 90, 38 BNA LRRM 2757.
It is implicit in the Labor Management Relations Act (29 USCS §§ 141 et seq.) that the public interest is served by freedom of labor to use the weapon of picketing. Brotherhood of R. Trainmen v Jacksonville Terminal Co. (1969) 394 US 369, 22 L Ed 2d 344, 89 S Ct 1109, 70 BNA LRRM 2961, 59 CCH LC P 13362, reh den (1969) 394 US 1024, 23 L Ed 2d 51, 89 S Ct 1622.
The Act does not attempt to settle industrial disputes but leaves the parties to the resultant of their opposed economic powers, and therefore, does not require further negotiation after it becomes apparent that a settlement is impossible. NLRB v Cambria Clay Products Co. (1954, CA6) 215 F2d 48, 34 BNA LRRM 2471, 34 BNA LRRM 2810, 26 CCH LC P 68540, reh den (1955, CA6) 229 F2d 433, 36 BNA LRRM 2714, 28 CCH LC P 69505.
11. --Preservation of management prerogatives
Congress intended by the enactment of this act (29 USCS §§ 141 et seq.) that employers be free in the future to discharge supervisors for joining a union and to interfere with their union activities. NLRB v Edward G. Budd Mfg. Co. (1948, CA6) 169 F2d 571, 22 BNA LRRM 2414, 15 CCH LC P 64703, cert den (1949) 335 US 908, 93 L Ed 441, 69 S Ct 411, 23 BNA LRRM 2228.
One of the objectives of the Act is protection of employees in freely negotiating concerning unsatisfactory plant conditions and other conditions of employment without fear of reprisal, but the purpose of the Act was not to guarantee to employees the right to do as they pleased under any given set of circumstances and in total disregard of the obligations of their employment. NLRB v Washington Aluminum Co. (1961, CA4) 291 F2d 869, 48 BNA LRRM 2558, 43 CCH LC P 17039, revd on other grounds (1962) 370 US 9, 8 L Ed 2d 298, 82 S Ct 1099, 50 BNA LRRM 2235, 45 CCH LC P 17637.
The objectives of national labor policy require the rightful prerogative of owners independently to rearrange their businesses and even eliminate themselves as employers be balanced by some protection to the employees from a sudden change in the employment relationship. Overnite Transp. Co. v NLRB (1967, CA4) 372 F2d 765, 64 BNA LRRM 2359, 54 CCH LC P 11725, cert den (1967) 389 US 838, 19 L Ed 2d 101, 88 S Ct 59, 66 BNA LRRM 2307, 56 CCH LC P 12214.
12. --Protection of union members
The National Labor Relations Act, as amended (29 USCS §§ 141-197), does not undertake to protect union members in their rights as members from arbitrary conduct by unions and union officers. International Asso. of Machinists v Gonzales (1958) 356 US 617, 2 L Ed 2d 1018, 78 S Ct 923, 42 BNA LRRM 2135, 34 CCH LC P 71547, reh den (1958) 357 US 944, 2 L Ed 2d 1559, 78 S Ct 1379.
The congressional policy of protecting the union member is particularly apt where membership is the result not of the individual employee's voluntary choice, but of the insertion of a union security provision in the contract under which a substantial minority of employees have been forced into membership, which protection prevents a nonvoluntary union member from being fined by the union for crossing the picket line or otherwise indulging in a protected activity. Allis-Chalmers Mfg. Co. v NLRB (1966, CA7) 358 F2d 656, 61 BNA LRRM 2498, 53 CCH LC P 11104, revd on other grounds (1967) 388 US 175, 18 L Ed 2d 1123, 87 S Ct 2001, 65 BNA LRRM 2449, 55 CCH LC P 11972, reh den (1967) 389 US 892, 19 L Ed 2d 202, 88 S Ct 13.
13. Construction
Although what Congress did in enacting the Labor-Management Reporting and Disclosure Act of 1959 does not establish what it meant when it enacted the Taft-Hartley amendment to the National Labor Relations Act in 1947, the 1959 act, being another major step in an evolving pattern of regulation of union conduct, is a relevant consideration in determining the meaning of provisions of the 1947 legislation, and courts may properly take into account the 1959 act when asked to extend the reach of the 1947 act's vague language to limits which, read literally, the words might permit. NLRB v Drivers, Chauffeurs, Helpers, etc. (1960) 362 US 274, 4 L Ed 2d 710, 80 S Ct 706, 45 BNA LRRM 2975, 39 CCH LC P 66351; NLRB v Allis-Chalmers Mfg. Co. (1967) 388 US 175, 18 L Ed 2d 1123, 87 S Ct 2001, 65 BNA LRRM 2449, 55 CCH LC P 11972, reh den (1967) 389 US 892, 19 L Ed 2d 202, 88 S Ct 13.
The amended National Labor Relations Act does not dichotomize "public" as opposed to "private" interests, and the two interblend in the intricate statutory scheme. International Union, etc. v Scofield (1965) 382 US 205, 15 L Ed 2d 272, 86 S Ct 373, 60 BNA LRRM 2479, 52 CCH LC P 16771.
This act [§§ 141 et seq. of this title] is prospective and not retroactive. NLRB v Mylan-Sparta Co. (1948, CA6) 166 F2d 485, 21 BNA LRRM 2368, 14 CCH LC P 64306; NLRB v National Plastic Products Co. (1949, CA4) 175 F2d 755, 24 BNA LRRM 2155, 24 BNA LRRM 2333, 16 CCH LC P 65195, 16 CCH LC P 65247.
The Act created rights against employers which did not exist before, although such rights were not private rights vested in employees but were public rights protected by the power placed by the Act in the NLRB. NLRB v Edward G. Budd Mfg. Co. (1948, CA6) 169 F2d 571, 22 BNA LRRM 2414, 15 CCH LC P 64703, cert den (1949) 335 US 908, 93 L Ed 441, 69 S Ct 411, 23 BNA LRRM 2228; Arnolt Corp. v Stansen Corp. (1951, CA7 Ill) 189 F2d 5.
Where pre-hearing election was held prior to time this act amended by 29 USCS § 141, provisions of former and not latter were applicable. NLRB v National Plastic Products Co. (1949, CA4) 175 F2d 755, 24 BNA LRRM 2155, 24 BNA LRRM 2333, 16 CCH LC P 65195, 16 CCH LC P 65247.
The Act did not confer private rights, but granted only rights in the interest of the public to be protected by a procedure looking solely to public ends. Haleston Drug Stores, Inc. v NLRB (1951, CA9) 187 F2d 418, 27 BNA LRRM 2401, 19 CCH LC P 66187, cert den (1951) 342 US 815, 96 L Ed 616, 72 S Ct 29, 28 BNA LRRM 2625.
The Act must be construed broadly and given effect to cope with and prevent the mischiefs it was designed to meet and do away with, so that shadow boxing with words, including dialectical hair splitting, has no proper place in construing and applying the Act. NLRB v Metallic Bldg. Co. (1953, CA5) 204 F2d 826, 32 BNA LRRM 2162, 23 CCH LC P 67636, cert den (1954) 347 US 911, 98 L Ed 1068, 74 S Ct 473, 33 BNA LRRM 2456.
The Act is a type of legislation which is remedial in character and is to be broadly and liberally construed to accomplish its intended purpose. Department & Specialty Store Employees' Union v Brown (1960, CA9 Cal) 284 F2d 619, 47 BNA LRRM 2145, 41 CCH LC P 16639, cert den (1961) 366 US 934, 6 L Ed 2d 846, 81 S Ct 1659, 48 BNA LRRM 2243.
Violations of the NLRA give rise to public rather than private rights, thereby making it unnecessary for the NLRB to determine the effect of a clear and uncoerced agreement not to file an unfair labor practice charge. Henry I. Siegel Co. v NLRB (1965, CA2) 340 F2d 309, 58 BNA LRRM 2182, 51 CCH LC P 19440.
Decisions of federal courts concerning the construction of this act (29 USCS §§ 141 et seq.) are binding upon state courts in cases involving interstate commerce. Stone Logging & Contracting Co. v International Woodworkers of America (1943) 171 Or 13, 135 P2d 759, 7 CCH LC P 61581.
14. Relationship with other laws
This act (29 USCS §§ 141 et seq.) is federal legislation, administered by a national agency, intended to solve a national problem on a national scale; hence, its application is not dependent on the state law in determination of employer-employee relationship. NLRB v Hearst Publications, Inc. (1944) 322 US 111, 88 L Ed 1170, 64 S Ct 851, 14 BNA LRRM 614, 8 CCH LC P 51179, reh den (1944) 322 US 769, 88 L Ed 1595, 64 S Ct 1148.
For a state to impinge on the area of labor combat designed by the NLRA to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the Federal Act prohibits. Garner v Teamsters, Chauffeurs & Helpers Local Union (1953) 346 US 485, 98 L Ed 228, 74 S Ct 161, 33 BNA LRRM 2218, 24 CCH LC P 68020; Teamsters, Chauffeurs & Helpers Union v Morton (1964) 377 US 252, 12 L Ed 2d 280, 84 S Ct 1253, 56 BNA LRRM 2225, 49 CCH LC P 19000; NLRB v Nash-Finch Co. (1971) 404 US 138, 30 L Ed 2d 328, 92 S Ct 373, 78 BNA LRRM 2967, 66 CCH LC P 12253.
Mere existence of remedies under National Labor Relations Act (29 USCS §§ 141 et seq.) does not preclude action under 42 USCS § 1985 for conspiracy to refuse to hire farm workers. Irizarry v Quiros (1983, CA1 Puerto Rico) 722 F2d 869, 26 BNA WH Cas 880, 99 CCH LC P 34470.
State supreme court is not concerned with the wisdom of this act (29 USCS §§ 141 et seq.). International Ass'n of Machinists v State (1943) 153 Fla 672, 15 So 2d 485, 13 BNA LRRM 652, 7 CCH LC P 61867.
Taft-Hartley Act (29 USCS §§ 141 et seq.) providing for institution of injunction proceedings by general counsel of National Labor Relations Board in cases involving unfair labor practice does not deprive state court of jurisdiction in injunction proceeding where it had jurisdiction prior to passage of federal act. Mayer Bros. Poultry Farms v Meltzer (1948) 274 App Div 169, 80 NYS2d 874, 22 BNA LRRM 2315, 15 CCH LC P 64615, app den (1948) 274 App Div 877, 83 NYS2d 228.
II. PREEMPTION
A. In General
15. Generally
Federal labor relations acts have not merely laid down a substantive rule of law, but have expressed congressional intention that centralized administration of specially designed procedures is necessary to obtain uniform application of substantive rules and to avoid diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. Garner v Teamsters, Chauffeurs & Helpers Local Union (1953) 346 US 485, 98 L Ed 228, 74 S Ct 161, 33 BNA LRRM 2218, 24 CCH LC P 68020; Amalgamated Asso. of Street, etc. v Lockridge (1971) 403 US 274, 29 L Ed 2d 473, 91 S Ct 1909, 77 BNA LRRM 2501, 65 CCH LC P 11805, reh den (1971) 404 US 874, 30 L Ed 2d 120, 92 S Ct 24 and on remand (1971) 94 Idaho 475, 491 P2d 739, 79 BNA LRRM 2410.
The area left by the NLRA for permissible state action must be spelled out by the Supreme Court from conflicting indications of congressional will. Garner v Teamsters, Chauffeurs & Helpers Local Union (1953) 346 US 485, 98 L Ed 228, 74 S Ct 161, 33 BNA LRRM 2218, 24 CCH LC P 68020.
A state may not prohibit the exercise of rights which Federal Labor Relations Acts protect. Weber v Anheuser-Busch, Inc. (1955) 348 US 468, 99 L Ed 546, 75 S Ct 480, 35 BNA LRRM 2637, 27 CCH LC P 69064; United Mine Workers v Arkansas Oak Flooring Co. (1956) 351 US 62, 100 L Ed 941, 76 S Ct 559, 37 BNA LRRM 2828, 30 CCH LC P 69907, reh den (1956) 351 US 975, 100 L Ed 1493, 76 S Ct 1024; California v Taylor (1957) 353 US 553, 1 L Ed 2d 1034, 77 S Ct 1037, 40 BNA LRRM 2158, 32 CCH LC P 70732.
Areas that have been preempted by the amended NLRA and thereby withdrawn from state power are not susceptible of the limitation by fixed metes and bounds, and therefore such determination may first have to be made by the United States Supreme Court. Amalgamated Clothing Workers v Richman Bros. Co. (1955) 348 US 511, 99 L Ed 600, 75 S Ct 452, 56 Ohio Ops 249, 71 Ohio L Abs 177, 35 BNA LRRM 2682, 27 CCH LC P 69080.
A state court must, in deference to the NLRB, decline jurisdiction over an action for injunctive relief, where the moving party itself alleges unfair labor practices, the facts reasonably bring the controversy within federal labor relations acts, and the conduct, if not prohibited by the federal acts, may be reasonably deemed to come within the protection afforded by these acts. International Brotherhood of Teamsters, etc. v New York, N. H. & H. R. Co. (1956) 350 US 155, 100 L Ed 166, 76 S Ct 227, 37 BNA LRRM 2271, 29 CCH LC P 69667, reh den (1956) 350 US 977, 100 L Ed 847, 76 S Ct 429; Weber v Anheuser-Busch, Inc. (1955) 348 US 468, 99 L Ed 546, 75 S Ct 480, 35 BNA LRRM 2637, 27 CCH LC P 69064.
Federal labor law does not displace state causes of action sounding in tort or contract when the possibility that such causes will conflict with federal policy is remote, even when there may be an argumentative coincidence in the facts adducible in the state causes and a plausible proceeding before the NLRB. International Asso. of Machinists v Gonzales (1958) 356 US 617, 2 L Ed 2d 1018, 78 S Ct 923, 42 BNA LRRM 2135, 34 CCH LC P 71547, reh den (1958) 357 US 944, 2 L Ed 2d 1559, 78 S Ct 1379.
The possibility that a wrong may be partially redressed in proceedings before the NLRB does not deprive the wronged party of available state remedies for all damages suffered. International Asso. of Machinists v Gonzales (1958) 356 US 617, 2 L Ed 2d 1018, 78 S Ct 923, 42 BNA LRRM 2135, 34 CCH LC P 71547, reh den (1958) 357 US 944, 2 L Ed 2d 1559, 78 S Ct 1379.
Conflict in state and federal remedies which brings the doctrine of preemption into operation is one which involves a possibility that one forum would enjoin as illegal that which the other forum would find legal, or that the state courts would restrict the exercise of rights guaranteed by federal statutes. International Union, United Auto., etc. v Russell (1958) 356 US 634, 2 L Ed 2d 1030, 78 S Ct 932, 42 BNA LRRM 2142, 34 CCH LC P 71546, reh den (1958) 357 US 944, 2 L Ed 2d 1558, 78 S Ct 1379.
States lack the power to redress private wrongs or draft compensation for past harm where such efforts would regulate activities that are potentially subject to exclusive federal regulatory scheme embodied in federal labor legislation. San Diego Bldg. Trades Council v Garmon (1959) 359 US 236, 3 L Ed 2d 775, 79 S Ct 773, 43 BNA LRRM 2838, 37 CCH LC P 65367.
Unless a union rule or its enforcement impinges upon some policy of the federal labor law, the regulation of the relationship between union and employee is a contractual matter governed by state law. Scofield v NLRB (1969) 394 US 423, 22 L Ed 2d 385, 89 S Ct 1154, 70 BNA LRRM 3105, 59 CCH LC P 13373.
Federal labor law does not preempt all local regulations which touch or concern in any way the complex inter-relationships between employees, employers and unions, and in determining whether state law action is preempted by federal labor law, the proper focus of concern is the conduct being regulated, and not the formal description of governing legal standards. Amalgamated Asso. of Street, etc. v Lockridge (1971) 403 US 274, 29 L Ed 2d 473, 91 S Ct 1909, 77 BNA LRRM 2501, 65 CCH LC P 11805, reh den (1971) 404 US 874, 30 L Ed 2d 120, 92 S Ct 24 and on remand (1971) 94 Idaho 475, 491 P2d 739, 79 BNA LRRM 2410.
NLRA prevents state from regulating within zone protected and reserved for market freedom or for NLRB jurisdiction; thus, state acting as proprietor, rather than as regulator, acts without offending preemption principles of NLRA, because its acts are not tantamount to regulation or policy-making. Building & Constr. Trades Council v Associated Builders & Contractors, Inc. (1993, US) 122 L Ed 2d 565, 113 S Ct 1190, 93 CDOS 1652, 93 Daily Journal DAR 2999, 142 BNA LRRM 2649, 124 CCH LC P 10564, 7 FLW Fed S 55.
Jurisdiction of board is dependent not upon actual occurrence of strikes in specific industry, or even upon immediate threat of their occurrence therein, and unfair labor practices fall within scope of National Labor Relations Act and jurisdiction of board, not because they have led or have tended to lead to labor strife in particular instance, but by reason of fact that in generality of cases they do lead to such strife. NLRB v Alloy Cast Steel Co. (1941, CA6) 117 F2d 302, 7 BNA LRRM 463, 3 CCH LC P 60266.
Where enforcement of a state statute impairs, qualifies, or in any way subtracts from any of the rights guaranteed by this act [§§ 151 et seq. of this title] such provisions are ineffective to the extent of such conflict. Hamilton v NLRB (1947, CA6) 160 F2d 465, 19 BNA LRRM 2554, 12 CCH LC P 63673, cert den (1947) 332 US 762, 92 L Ed 348, 68 S Ct 65, 20 BNA LRRM 2677.
Pre-emption doctrine precludes federal court jurisdiction of railway's suit against union to recover extra costs imposed on railway by motor carrier because of motor carrier's extra expense of complying with illegal hot cargo clause imposed on it by union. Atchison, T. & S. F. R. Co. v International Brotherhood of Teamsters, etc. (1975, CA9 Cal) 511 F2d 1193, 88 BNA LRRM 2971, 76 CCH LC P 10712.
Defendants who claim that plaintiffs' state law claims are preempted by Act must demonstrate that their case is one that NLRB could legally decide in their favor. Talbot v Robert Matthew Distributing Co. (1992, CA7 Ill) 961 F2d 654, 140 BNA LRRM 2228, 121 CCH LC P 10098, RICO Bus Disp Guide (CCH) P 7981, 22 FR Serv 3d 331.
For purposes of preemption, "regulation" includes more than traditional enactment of laws, ordinances, rules and other legislative and administrative measures. Alameda Newspapers v City of Oakland (1996, CA9 Cal) 95 F3d 1406, 96 CDOS 6842, 153 BNA LRRM 2257.
Federal pre-emption doctrine leaves to the states the power to regulate any matter of peripheral concern to NLRB or conduct touching interests deeply rooted in local feeling and responsibility. Sheet Metal Workers International Asso. v Carter (1975) 133 Ga App 872, 212 SE2d 645, 89 BNA LRRM 3041, 75 CCH LC P 53536, cert den (1976) 423 US 1078, 47 L Ed 2d 89, 96 S Ct 866, 91 BNA LRRM 2167, 78 CCH LC P 53804.
This act (29 USCS §§ 141 et seq.) does not deprive a state of power to prevent unlawful conduct by labor unions where such conduct is not authorized or protected by the act. James v Marinship Corp. (1944) 25 Cal 2d 721, 155 P2d 329, 15 BNA LRRM 798, 9 CCH LC P 62475, 160 ALR 900.
16. Scope of federal labor law
In determining whether an order of a state employment relations board is repugnant to the provisions of the NLRA, it is not sufficient to show that the State Act under which the order was made might be so construed and applied as to dilute, impair or defeat rights under the NLRA, nor to show that other parts of the statute which were not applied in the order are incompatible with and hostile to the policy expressed in the Federal Act. Allen-Bradley, etc. v Wisconsin Employment Relations Bd. (1942) 315 US 740, 86 L Ed 1154, 62 S Ct 820, 10 BNA LRRM 520, 5 CCH LC P 51135.
Both as to labor activities outlawed and those left free for the operation of economic forces by the amended NLRA, the areas that have been preempted by the Act and thereby withdrawn from state power are not susceptible of determination by fixed metes and bounds. Weber v Anheuser-Busch, Inc. (1955) 348 US 468, 99 L Ed 546, 75 S Ct 480, 35 BNA LRRM 2637, 27 CCH LC P 69064; San Diego Bldg. Trades Council v Garmon (1959) 359 US 236, 3 L Ed 2d 775, 79 S Ct 773, 43 BNA LRRM 2838, 37 CCH LC P 65367.
Although the NLRA carries implications of exclusive federal authority, and reflects Congress' withdrawal from the states of much that had theretofore been vested with the states, the statute leaves much to the states, and statutory implications concerning what has been taken from the states and what has been left to them are to be translated into concreteness by the process of litigating elucidation. International Asso. of Machinists v Gonzales (1958) 356 US 617, 2 L Ed 2d 1018, 78 S Ct 923, 42 BNA LRRM 2135, 34 CCH LC P 71547, reh den (1958) 357 US 944, 2 L Ed 2d 1559, 78 S Ct 1379.
Statutory implications concerning what the amended NLRA has taken from the states and what has been left to them are to be translated into concreteness by the process of litigating elucidation. San Diego Bldg. Trades Council v Garmon (1959) 359 US 236, 3 L Ed 2d 775, 79 S Ct 773, 43 BNA LRRM 2838, 37 CCH LC P 65367.
The questions whether a union's conduct in picketing a county courthouse construction project amounts to an unfair labor practice under the amended National Labor Relations Act, is protected by the provisions of the act, or is not covered by the act, are for the NLRB to determine in a proper proceeding brought before it. Plumbers, Steamfitters, R. P. F. && A. v County of Door (1959) 359 US 354, 3 L Ed 2d 872, 79 S Ct 844, 44 BNA LRRM 2034, 37 CCH LC P 65403.
A state may not regulate conduct arguably protected by the NLRA, and the legislative purpose of that Act may further dictate that certain activity neither protected nor prohibited by the Act be deemed privileged against state regulation. Hanna Mining Co. v District 2, Marine Engineers Beneficial Asso. (1965) 382 US 181, 15 L Ed 2d 254, 86 S Ct 327, 60 BNA LRRM 2473, 52 CCH LC P 16768, on remand (1967, Wis Cir Ct) 56 CCH LC P 12287.
The amended NLRA does not require that states yield jurisdiction where state-regulated activity is merely a peripheral concern of the Federal Act, or where regulated conduct touches interest so deeply rooted in local feeling and responsibility that in the absence of compelling congressional direction it cannot be inferred that Congress deprived the states of the power to act. Linn v United Plant Guard Workers (1966) 383 US 53, 15 L Ed 2d 582, 86 S Ct 657, 61 BNA LRRM 2345, 53 CCH LC P 11061; San Diego Bldg. Trades Council v Garmon (1959) 359 US 236, 3 L Ed 2d 775, 79 S Ct 773, 43 BNA LRRM 2838, 37 CCH LC P 65367; Vaca v Sipes (1967) 386 US 171, 17 L Ed 2d 842, 87 S Ct 903, 64 BNA LRRM 2369, 1 CCH EPD P 9767, 55 CCH LC P 11731.
As a general rule, neither state nor federal courts have jurisdiction over suits directly involving activity which is arguably subject to § 7 or § 8 of the National Labor Relations Act. Vaca v Sipes (1967) 386 US 171, 17 L Ed 2d 842, 87 S Ct 903, 64 BNA LRRM 2369, 1 CCH EPD P 9767, 55 CCH LC P 11731.
State law may not regulate conduct either protected or prohibited by the National Labor Relations Act. International Brotherhood of Boilermakers, etc. International Brotherhood of Boilermakers, etc. v Hardeman (1971) 401 US 233, 28 L Ed 2d 10, 91 S Ct 609, 76 BNA LRRM 2542, 64 CCH LC P 11520, reh den (1971) 402 US 967, 29 L Ed 2d 132, 91 S Ct 1607 and conformed to (1971, CA5 Ala) 442 F2d 1348, 77 BNA LRRM 2735, 65 CCH LC P 11869.
Where it is not clear whether particular conduct is protected, prohibited, or left to state regulation by the National Labor Relations Act, the courts must stay their hand, because courts are not the primary tribunals to adjudicate such issues, which must be left in the first instance to the NLRB. International Brotherhood of Boilermakers, etc. v Hardeman (1971) 401 US 233, 28 L Ed 2d 10, 91 S Ct 609, 76 BNA LRRM 2542, 64 CCH LC P 11520, reh den (1971) 402 US 967, 29 L Ed 2d 132, 91 S Ct 1607 and conformed to (1971, CA5 Ala) 442 F2d 1348, 77 BNA LRRM 2735, 65 CCH LC P 11869.
The NLRA (29 USCS §§ 151-158, 159-168) preempts state and federal court jurisdiction to remedy conduct which is arguably protected or prohibited by the Act. Amalgamated Asso. of Street, etc. v Lockridge (1971) 403 US 274, 29 L Ed 2d 473, 91 S Ct 1909, 77 BNA LRRM 2501, 65 CCH LC P 11805, reh den (1971) 404 US 874, 30 L Ed 2d 120, 92 S Ct 24 and on remand (1971) 94 Idaho 475, 491 P2d 739, 79 BNA LRRM 2410.
In determining whether particular state causes of action or regulations are pre-empted by National Labor Relations Act (29 USCS §§ 151 et seq.), court first determines whether conduct that state seeks to regulate or to make basis of liability is actually or arguably protected or prohibited by Act, and if conduct at issue is arguably prohibited or protected, otherwise applicable state law and procedures are ordinarily pre-empted; however, when conduct at issue is only peripheral concern of Act or touches on interests so deeply rooted in local feeling and responsibility that, in absence of compelling congressional direction, it could not be inferred that Congress intended to deprive state of power to act, court will refuse to invalidate state regulation or sanction of conduct. Local 926, International Union of Operating Engineers v Jones (1983) 460 US 669, 75 L Ed 2d 368, 103 S Ct 1453, 112 BNA LRRM 3272, 96 CCH LC P 14141.
Application of state law in action is pre-empted by § 301(a) of Labor Management Relations Act of 1947 (29 USCS § 185(a)) only if resolution of state law claim requires interpretation of collective bargaining agreement; state law claim is "independent" of such agreement for purposes of § 301, even if dispute resolution pursuant to agreement would require addressing precisely same set of facts, as long as state law claim can be resolved without interpreting agreement itself; under such preemption standard, employee covered by collective bargaining agreement that provides her with contractual remedy for discharge without just cause, who has been fired for allegedly filing false worker's compensation claim, may seek and enforce state law remedy in form of compensatory and punitive damages for retaliatory discharge--for which, under state's law, she is required to show (1) discharge or threat of discharge and (2) motivation by employer to deter or to interfere with employee's exercise of rights granted under state's worker's compensation statute--since required factual showings, pertaining to conduct of employee and conduct and motivation of employer, do not require construction of any provision of collective bargaining agreement, and thus render remedy sought "independent" of such agreement for purposes of § 301; such result is consistent both with policy demanding certain adjudication of disputes over meaning of collective bargaining agreements through application of federal labor law principles, necessarily uniform throughout nation--since their adjudication otherwise might lead to inconsistent result of as many state law principles as there are states--and with cases that have permitted separate fonts of substantive rights to remain unpre-empted by other federal labor law statutes. Lingle v Norge Div. of Magic Chef, Inc. (1988) 486 US 399, 100 L Ed 2d 410, 108 S Ct 1877, 46 BNA FEP Cas 1553, 3 BNA IER Cas 481, 128 BNA LRRM 2521, on remand (1988, CA7 Ill) 857 F2d 422.
Executive Order No. 12954, which was issued by President pursuant to his authority under Federal Property and Administrative Services Act (40 USCS §§ 471 et seq.), and which bars federal government from contracting with employers who hire permanent replacements during lawful strike, is preempted by National Labor Relations Act (29 USCS §§ 151 et seq.), which preserves to employers right to permanently replace economic strikers as offset to employees' right to strike. Chamber of Commerce of the United States v Reich (1996, App DC) 74 F3d 1322, 151 BNA LRRM 2353, 40 CCF P 76878, 131 CCH LC P 11496.
Suit by employer against union for engaging in picketing activities that allegedly constituted tortious interference with employer's business relations was properly removed from state court to federal district court where state law upon which employer relied was preempted by federal labor law and employer's right to relief, if any existed, depended entirely on federal law and must be deemed to arise under federal law. Palm Beach Co. v Journeymen's & Production Allied Services etc. (1981, SD NY) 519 F Supp 705, 111 BNA LRRM 2423, 94 CCH LC P 13506.
Executive Order 12954, which was issued pursuant to Federal Property and Administrative Services Act (40 USCS §§ 471 et seq.), and which authorizes Secretary of Labor to disqualify employers with federal contracts exceeding $ 100,000 who hire permanent replacement workers during lawful economic strike, is not subject to NLRA preemption doctrine, because its issuance was exercise of proprietary, rather than regulatory, functions. Chamber of Commerce of the United States v Reich (1995, DC Dist Col) 149 BNA LRRM 2961, 130 CCH LC P 11382.
If state court offers remedy not in conflict with National Labor Relations Act, or one not available under federal law, state jurisdiction exists; conversely, where federal remedy provides remedy that is adequate, even though state law provides comparable remedy, federal courts have exclusive jurisdiction. Colgate-Palmolive-Peet Co. v Warehouse Union, etc. (1955, Cal App) 282 P2d 1015, 36 BNA LRRM 2334, 28 CCH LC P 69280, hear gr by sup ct, app dismd.
State action is precluded if activity is arguably within protection or prohibition of National Labor Relations Act. International Union of Operating Engineers v Bing Constr. Co. (1974) 90 Nev 183, 521 P2d 1231, 86 BNA LRRM 2761.
A controversy between labor unions and members of those unions is a subject which has not been preempted by federal authority under the provisions of the National Labor Relations Act. Hansen v Brotherhood of Locomotive Firemen & Enginemen (1970) 24 Utah 2d 30, 465 P2d 351, 73 BNA LRRM 2500, 62 CCH LC P 52242, cert den (1970) 398 US 960, 26 L Ed 2d 545, 90 S Ct 2176, 74 BNA LRRM 2420.
If no proceeding is had under National Labor Relations Act, no conflict of jurisdiction can arise between federal and state boards. International Brotherhood of Electrical Workers, etc. v Wisconsin Employment Relations Bd. (1944) 245 Wis 532, 15 NW2d 823, 15 BNA LRRM 610, 8 CCH LC P 62359.
17. Scope of NLRB jurisdiction, generally
The exclusive initial jurisdiction conferred upon the NLRB by the National Labor Relations Act to determine whether an employer is subject to its authority is not limited to the preliminary informal inquiry which under 29 USCS § 155 it has the right and duty to make before public action, but extends to the public investigation under 29 USCS § 160. Newport News Shipbuilding & Dry Dock Co. v Schauffler (1938) 303 US 54, 82 L Ed 646, 58 S Ct 466, 1 A BNA LRRM 580, 1 CCH LC P 17025.
Failure of the NLRB to define the significance of particular activity does not give the state power to act with respect to that activity. San Diego Bldg. Trades Council v Garmon (1959) 359 US 236, 3 L Ed 2d 775, 79 S Ct 773, 43 BNA LRRM 2838, 37 CCH LC P 65367.
Upon a determination by the NLRB that particular conduct is protected or prohibited by the amended NLRA, the states are relinquished of all jurisdiction respecting such conduct. San Diego Bldg. Trades Council v Garmon (1959) 359 US 236, 3 L Ed 2d 775, 79 S Ct 773, 43 BNA LRRM 2838, 37 CCH LC P 65367.
When an activity is arguably subject to the jurisdiction of the NLRB, a state must defer to its exclusive competence. Re Green (1962) 369 US 689, 8 L Ed 2d 198, 82 S Ct 1114, 20 Ohio Ops 2d 422, 89 Ohio L Abs 214, 50 BNA LRRM 2183, 45 CCH LC P 50532.
The need for protecting the exclusiveness of NLRB jurisdiction is obviously greatest when the precise issue brought before a court is in the process of litigation through procedures originating in the NLRB. Marine Engineers Beneficial Asso. v Interlake S.S. Co. (1962) 370 US 173, 8 L Ed 2d 418, 82 S Ct 1237, 50 BNA LRRM 2347, 45 CCH LC P 50555.
Proper administration of federal labor law requires state courts to relinquish jurisdiction not only over those controversies actually found to be within the jurisdiction of the NLRB but over litigation arising from activities which arguably might be subject to that agency's cognizance. Marine Engineers Beneficial Asso. v Interlake S.S. Co. (1962) 370 US 173, 8 L Ed 2d 418, 82 S Ct 1237, 50 BNA LRRM 2347, 45 CCH LC P 50555.
State court jurisdiction of a labor dispute is preempted if the dispute is arguably within the jurisdiction of the NLRB. Incres S.S. Co. v International Maritime Workers Union (1963) 372 US 24, 9 L Ed 2d 557, 83 S Ct 611, 52 BNA LRRM 2431, 46 CCH LC P 18086.
In the absence of an overriding state interest such as that involved in the maintenance of domestic peace, state courts must defer to exclusive competence of NLRB in cases in which activity that is subject matter of litigation is arguably subject to protection of 29 USCS §§ 157, 158. United Asso. of Journeymen & Apprentices v Borden (1963) 373 US 690, 10 L Ed 2d 638, 83 S Ct 1423, 53 BNA LRRM 2322, 47 CCH LC P 50832, reh den (1963) 375 US 872, 11 L Ed 2d 101, 84 S Ct 28, 48 CCH LC P 50922; Linn v United Plant Guard Workers (1966) 383 US 53, 15 L Ed 2d 582, 86 S Ct 657, 61 BNA LRRM 2345, 53 CCH LC P 11061.
Relinquishment of state jurisdiction in cases in which activity is the subject matter of litigation arguably subject to the protection of the NLRA is as necessary in a suit for damages as in a suit seeking equitable relief. United Asso. of Journeymen & Apprentices v Borden (1963) 373 US 690, 10 L Ed 2d 638, 83 S Ct 1423, 53 BNA LRRM 2322, 47 CCH LC P 50832, reh den (1963) 375 US 872, 11 L Ed 2d 101, 84 S Ct 28, 48 CCH LC P 50922; San Diego Bldg. Trades Council v Garmon (1959) 359 US 236, 3 L Ed 2d 775, 79 S Ct 773, 43 BNA LRRM 2838, 37 CCH LC P 65367.
The NLRB is invested with the exclusive power to adjudicate conduct arguably protected or prohibited by the NLRA. Liner v Jafco, Inc. (1964) 375 US 301, 11 L Ed 2d 347, 84 S Ct 391, 55 BNA LRRM 2048, 48 CCH LC P 50985.
NLRB General Counsel being vested with final authority on behalf of the NLRB in respect of investigation of charges and issuance of complaints (29 USCS § 153(d)), his pronouncements in this context are entitled to great weight in determining the line between permissible and federally preempted state regulation of union activities. Hanna Mining Co. v District 2, Marine Engineers Beneficial Asso. (1965) 382 US 181, 15 L Ed 2d 254, 86 S Ct 327, 60 BNA LRRM 2473, 52 CCH LC P 16768, on remand (1967, Wis Cir Ct) 56 CCH LC P 12287.
A decision that NLRB jurisdiction preempts federal and state court jurisdiction over a given class of cases must depend upon the nature of the particular interests being asserted and the effect upon the administration of national labor policies of concurrent judicial and administrative remedies. Vaca v Sipes (1967) 386 US 171, 17 L Ed 2d 842, 87 S Ct 903, 64 BNA LRRM 2369, 1 CCH EPD P 9767, 55 CCH LC P 11731.
NLRB jurisdiction is exclusive, preempting state jurisdiction to grant injunctive relief as to any activities arguably subject to regulation under 29 USCS §§ 157, 158. International Longshoremen's Asso. v Ariadne Shipping Co. (1970) 397 US 195, 25 L Ed 2d 218, 90 S Ct 872, 73 BNA LRRM 2625, 62 CCH LC P 10708, on remand (1970, Fla App D3) 233 So 2d 650, 74 BNA LRRM 2559.
Under the preemption doctrine, the states as well as the federal courts must defer to the NLRB's exclusive competence when an activity is arguably protected by 29 USCS § 157 or arguably prohibited by 29 USCS § 158, if the danger of state interference with national policy is to be averted. William E. Arnold Co. v Carpenters Dist. Council (1974) 417 US 12, 40 L Ed 2d 620, 94 S Ct 2069, 86 BNA LRRM 2212, 74 CCH LC P 10032, conformed to (1974, Fla) 299 So 2d 9, 88 BNA LRRM 2424, 74 CCH LC P 10286.
Where Congress has provided remedies for proscribed conduct independent of those available in NLRB proceeding, preemption doctrine has no application. United States v Palumbo Bros. (1998, CA7 Ill) 145 F3d 850, 22 EBC 1591, 158 BNA LRRM 2263, reh, en banc, den (1998, CA7 Ill) 1998 US App LEXIS 12714.
States are precluded from acting in labor controversies falling within the purview of this act (29 USCS §§ 141 et seq.) when the exercise of state power threatens, either actually or potentially, interference with the board's administration. Cab Operating Corp. v New York (1965, SD NY) 243 F Supp 550, 59 BNA LRRM 2628, 52 CCH LC P 16542.
NLRB has exclusive jurisdiction in controversies pertinent to labor disputes in which union activity in question is arguably within purview of 29 USCS §§ 157 or 158. International Brotherhood of Electrical Workers v Chain Lighting & Appliance Co. (1975, Miss) 309 So 2d 530, 89 BNA LRRM 2067.
NLRB Regional Office's refusal to intervene in controversy does not invest states with jurisdiction over activities which they have been pre-empted from regulating. International Brotherhood of Electrical Workers v Chain Lighting & Appliance Co. (1975, Miss) 309 So 2d 530, 89 BNA LRRM 2067.
Whether conduct comes within ambit of National Labor Relations Board must turn on whether it may rationally be concluded that conduct in question is activity conducted for purpose and within scope of recognized labor objectives, or whether it is conduct outside that scope although engaged in by members of labor union; if activity is merely peripheral concern of Labor Management Relations Act, jurisdiction of State to regulate activity in furtherance of local feeling and responsibility remains undiminished. Barclay's Ice Cream Co. v Ice Cream Drivers & Employees Union (1977) 41 NY2d 269, 392 NYS2d 278, 360 NE2d 956, 94 BNA LRRM 2647, cert den (1978) 436 US 925, 56 L Ed 2d 767, 98 S Ct 2818, 98 BNA LRRM 2441, 83 CCH LC P 55115.
In general, NLRA grant exclusive jurisdiction over labor disputes to NLRB and preempts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by NLRA, but preemption is inappropriate when conduct at issue is only peripheral federal concern under Act or if it involves significant state interest that outweights NLRB's interest; thus, state court action brought by agricultural laborers for interference with concerted activities for purposes of collective bargaining under state law, and for wrongful discharge contrary to clear mandate of public policy, was not preempted, because agricultural laborers, who are explicitly excluded from NLRA's definition of employee, are not subject to NLRB's jurisdiction. Bravo v Dolsen Cos. (1993) 71 Wash App 769, 862 P2d 623, 145 BNA LRRM 2148.
Where there was merely arguable jurisdiction in NLRB, it was sufficient for dismissal by state court, without prejudice, pending action by board. Mitcham v Ark-La Constr. Co. (1965) 239 Ark 1162, 397 SW2d 789, 61 BNA LRRM 2148, 53 CCH LC P 51439.
When a dispute is subject to NLRB jurisdiction, a state is preempted from acting to enforce private or public rights. United Maintenance & Mfg. Co. v United Steelworkers of America (1974) 157 W Va 788, 204 SE2d 76, 86 BNA LRRM 2364.
When National Labor Relations Board has acted in particular case, question of whether there is conflict between federal and state jurisdictions is to be determined by provisions of respective federal and state statutes. International Brotherhood of Electrical Workers, etc. v Wisconsin Employment Relations Bd. (1944) 245 Wis 532, 15 NW2d 823, 15 BNA LRRM 610, 8 CCH LC P 62359.
State labor relations board has jurisdiction to act in the matter of labor relations of an employer engaged in interstate commerce when state board's acts do not conflict with those of the NLRB, or in the event the NLRB has taken no steps to accept jurisdiction, or unless the intention of Congress is clearly expressed that the national board shall cover the entire field. Alleghany Ludlum Steel Corp. v Kelley (1944) 184 Misc 47, 49 NYS2d 762, 14 BNA LRRM 902, 8 CCH LC P 62350, affd (1945) 269 App Div 805, 56 NYS2d 196, 16 BNA LRRM 921, affd (1945) 295 NY 607, 64 NE2d 352, 17 BNA LRRM 1006, revd on other grounds (1947) 330 US 767, 91 L Ed 1234, 67 S Ct 1026, 19 BNA LRRM 2499, 12 CCH LC P 51245; Public Service Employees' Union v Wisconsin Employment Relations Board (1944) 246 Wis 190, 16 NW2d 823, 15 BNA LRRM 811, 9 CCH LC P 62458.
Retaliation for exercise of protected right under NLRA is within exclusive jurisdiction of NLRB. Bibby v Philadelphia Coca Cola Bottling Co. (2000, ED Pa) 85 F Supp 2d 509, 82 BNA FEP Cas 207, 163 BNA LRRM 2938.
18. Primary NLRB jurisdiction, generally
In determining whether state action is permissible in a controversy within the jurisdiction of the NLRB, it is not necessary or appropriate for the Supreme Court to surmise how the Board might have decided the controversy had it been presented to the Board. Garner v Teamsters, Chauffeurs & Helpers Local Union (1953) 346 US 485, 98 L Ed 228, 74 S Ct 161, 33 BNA LRRM 2218, 24 CCH LC P 68020.
Power to decide how consistent with federal policy state law must be resides in the first instance in the NLRB, guided by the language of the proviso to 29 USCS § 160(a) empowering NLRB to cede jurisdiction to state agencies. Amalgamated Meat Cutters & Butcher Workmen v Fairlawn Meats, Inc. (1957) 353 US 20, 1 L Ed 2d 613, 77 S Ct 604, 39 BNA LRRM 2571, 32 CCH LC P 70564, reh den (1957) 353 US 948, 1 L Ed 2d 857, 77 S Ct 822.
Whether an activity is subject to state jurisdiction is a question for the NLRB in the first instance, and in the absence of a clear determination by the NLRB that an activity is neither protected nor prohibited, or in the absence of a compelling precedent applied to essentially undisputed facts, it is not for the United States Supreme Court to decide whether such activity is subject to state jurisdiction. San Diego Bldg. Trades Council v Garmon (1959) 359 US 236, 3 L Ed 2d 775, 79 S Ct 773, 43 BNA LRRM 2838, 37 CCH LC P 65367; Ex parte George (1962) 371 US 72, 9 L Ed 2d 133, 83 S Ct 178, 51 BNA LRRM 2423, 46 CCH LC P 50665.
State power and state jurisdiction, as much as authority of the United States Supreme Court, must yield to the exclusive primary competence of the NLRB to determine whether a particular labor-management controversy lies within the jurisdiction of the Board when an activity is arguably subject to federal labor relations provisions. San Diego Bldg. Trades Council v Garmon (1959) 359 US 236, 3 L Ed 2d 775, 79 S Ct 773, 43 BNA LRRM 2838, 37 CCH LC P 65367.
Courts are not primary tribunals to adjudicate the question whether a particular labor activity which a state seeks to regulate is governed by provisions of the NLRA or lies outside those provisions, but rather such determination is left in the first instance to the NLRB. San Diego Bldg. Trades Council v Garmon (1959) 359 US 236, 3 L Ed 2d 775, 79 S Ct 773, 43 BNA LRRM 2838, 37 CCH LC P 65367.
Actual assertion of NLRB jurisdiction over a union at the very time a state court action is pending against it for conduct arguably prohibited as an unfair labor practice under the NLRA is more than sufficient to create an arguable case for NLRB jurisdiction. Marine Engineers Beneficial Asso. v Interlake S.S. Co. (1962) 370 US 173, 8 L Ed 2d 418, 82 S Ct 1237, 50 BNA LRRM 2347, 45 CCH LC P 50555.
A state court may assume jurisdiction over labor disputes over which the NLRB has jurisdiction but declines to assert. Radio & Television Broadcast Technicians Local Union v Broadcast Service of Mobile, Inc. (1965) 380 US 255, 13 L Ed 2d 789, 85 S Ct 876, 58 BNA LRRM 2545, 51 CCH LC P 19562.
Where the NLRB declines jurisdiction under 29 USCS § 164(c), state agencies and courts are permitted to assume jurisdiction. Vaca v Sipes (1967) 386 US 171, 17 L Ed 2d 842, 87 S Ct 903, 64 BNA LRRM 2369, 1 CCH EPD P 9767, 55 CCH LC P 11731.
Where it is not clear whether particular conduct is protected, prohibited, or left to state regulation by the NLRA, courts must stay their hand, because such issues must be left in the first instance to the NLRB. International Brotherhood of Boilermakers, etc. v Hardeman (1971) 401 US 233, 28 L Ed 2d 10, 91 S Ct 609, 76 BNA LRRM 2542, 64 CCH LC P 11520, reh den (1971) 402 US 967, 29 L Ed 2d 132, 91 S Ct 1607 and conformed to (1971, CA5 Ala) 442 F2d 1348, 77 BNA LRRM 2735, 65 CCH LC P 11869.
Jurisdiction of federal district court to adjudicate criminal prosecution does not infringe upon or interfere with primary jurisdiction of NLRB. United States v Palumbo Bros. (1998, CA7 Ill) 145 F3d 850, 22 EBC 1591, 158 BNA LRRM 2263, reh, en banc, den (1998, CA7 Ill) 1998 US App LEXIS 12714.
Fact that resolution of issue may also involve determination of whether unfair labor practice has been committed will not deprive court of jurisdiction. Todd Shipyards Corp. v Industrial Union of Marine & Shipbuilding Workers, etc. (1964, ED NY) 232 F Supp 589, 56 BNA LRRM 2784, 50 CCH LC P 19180, affd (1965, CA2 NY) 344 F2d 107, 58 BNA LRRM 2826, 51 CCH LC P 19626.
When union activity is not of violent nature and clearly constitutes unfair labor practice under National Labor Relations Act (29 USCS §§ 151 et seq.) state courts have no power to enjoin it, because Congress has pre-empted field, and National Labor Relations Board has exclusive primary jurisdiction. Table Talk Pies v Strauss (1964, SD NY) 237 F Supp 514, 57 BNA LRRM 2250, 50 CCH LC P 19231.
Federal court jurisdiction under 29 USCS § 412 over union member's suit against union for refusing to transfer him is not preempted even if union's conduct is arguably an unfair labor practice. Woods v International Brotherhood of Electrical Workers (1975, ND Ga) 404 F Supp 110, 91 BNA LRRM 2704, 79 CCH LC P 11591.
Upon a showing of an arguable violation of 29 USCS § 158, state jurisdiction was displaced. Armstrong Cork Co. v Joiner (1966) 221 Ga 789, 147 SE2d 317, 61 BNA LRRM 2335, 53 CCH LC P 11040.
National Labor Relations Act (29 USCS §§ 151 et seq.) confers exclusive initial jurisdiction upon NLRB to determine facts upon existence of which depends duty of employer to bargain collectively with union as representative of all employees and right of union to bind all employees to union shop contract. Stone Logging & Contracting Co. v International Woodworkers of America (1943) 171 Or 13, 135 P2d 759, 7 CCH LC P 61581.
State court properly refused to accept jurisdiction of labor matter where NLRB had not in fact declined or refused to accept jurisdiction even though it was shown that in all probability NLRB would not take jurisdiction because the only employee was employer's son and because their gross annual retail sales were far below the jurisdictional standard of cases entertained under rule of NLRB. Stryjewski v Brewery & Beer Distributor Drivers, etc. (1967) 426 Pa 512, 233 A2d 264, 66 BNA LRRM 2321, 56 CCH LC P 12195.
19. --Particular circumstances
A state court, in determining whether it must relinquish jurisdiction over controversy, on the ground that it arises from activities which might arguably be subject to the jurisdiction of the NLRB, is not free to decide whether the organization in question is a "labor organization" within the meaning of that statute, but is confined to deciding only whether the evidence in the case is sufficient to show that the organization is arguably a "labor organization" within the contemplation of the statute. Marine Engineers Beneficial Asso. v Interlake S.S. Co. (1962) 370 US 173, 8 L Ed 2d 418, 82 S Ct 1237, 50 BNA LRRM 2347, 45 CCH LC P 50555.
Problems of definition of status under the amended National Labor Relations Act, such as the question whether a foreman or supervisor is an "employee" within the meaning of the act, are of a kind entrusted initially to the NLRB as the agency charged with the day-to-day administration of the act as a whole. International Asso. of Bridge, Structural & Ornamental Iron Workers Union v Perko (1963) 373 US 701, 10 L Ed 2d 646, 83 S Ct 1429, 53 BNA LRRM 2327, 47 CCH LC P 50833, reh den (1963) 375 US 872, 11 L Ed 2d 101, 84 S Ct 27, 48 CCH LC P 50922.
Dismissal by NLRB of water carrier's petition for representation election among its engineers on ground that engineers were "supervisors" and automatically excluded from definition of "employees" under 29 USCS § 152(3) precluded "arguable application" of act in state court suit for injunction against picketing by union for purpose of forcing representation by union upon carrier's engineers, and consequently state court's authority to quench picketing was not preempted by act. Hanna Mining Co. v District 2, Marine Engineers Beneficial Asso. (1965) 382 US 181, 15 L Ed 2d 254, 86 S Ct 327, 60 BNA LRRM 2473, 52 CCH LC P 16768, on remand (1967, Wis Cir Ct) 56 CCH LC P 12287.
In determining whether state court jurisdiction is preempted under doctrine requiring such preemption when activity is arguably prohibited by National Labor Relations Act (29 USCS §§ 151 et seq.), critical inquiry is not whether state is enforcing law relating specifically to labor relations or one of general application, but whether controversy presented to state court is identical to or different from that which could have been, but was not, presented to National Labor Relations Board; it is only when state court controversy is identical to that which could have been presented to Board that state court's exercise of jurisdiction necessarily involves risk of interference with Board's unfair labor practice jurisdiction so as to require preemption. Sears, Roebuck & Co. v San Diego County Dist. Council of Carpenters (1978) 436 US 180, 56 L Ed 2d 209, 98 S Ct 1745, 98 BNA LRRM 2282, 83 CCH LC P 10582, on remand (1979) 25 Cal 3d 317, 158 Cal Rptr 370, 599 P2d 676, 102 BNA LRRM 2312, 87 CCH LC P 55208, cert den (1980) 447 US 935, 65 L Ed 2d 1130, 100 S Ct 3038, 111 BNA LRRM 3064, 90 CCH LC P 55283.
Primary administrative jurisdiction of NLRB precludes Federal District Court from adjudicating question whether compulsory union membership and compulsory compliance with union regulations violate constitutional rights of employees. Buckley v American Federation of Television & Radio Artists (1974, CA2 NY) 496 F2d 305, 86 BNA LRRM 2103, 73 CCH LC P 14506, cert den (1974) 419 US 1093, 42 L Ed 2d 687, 95 S Ct 688, 87 BNA LRRM 3293, reh den (1975) 420 US 956, 43 L Ed 2d 433, 95 S Ct 1342.
NLRB does not have primary administrative jurisdiction of suit by basketball player representatives against 2 basketball leagues for alleged antitrust violations. Robertson v National Basketball Asso. (1975, SD NY) 389 F Supp 867, 88 BNA LRRM 2787, 76 CCH LC P 10729, 1975-1 CCH Trade Cases P 60168, 19 FR Serv 2d 982, later proceeding (1975, SD NY) 67 FRD 691, 1975-2 CCH Trade Cases P 60448, later proceeding (1976, SD NY) 1976-1 CCH Trade Cases P 60777, later proceeding (1976, SD NY) 72 FRD 64, 1976-2 CCH Trade Cases P 61029, affd (1977, CA2 NY) 556 F2d 682, 1977-1 CCH Trade Cases P 61474, 23 FR Serv 2d 798, later proceeding (1986, SD NY) 630 F Supp 136, 107 CCH LC P 10049.
State court did not have jurisdiction to issue preliminary injunction against conduct by employer which constituted unfair labor practice as set forth in National Labor Relations Act (29 USCS §§ 151 et seq.). Elsis v Evans (1958, 2nd Dist) 157 Cal App 2d 399, 321 P2d 514, 41 BNA LRRM 2600, 34 CCH LC P 71279.
Where a dispute focuses solely on internal union affairs and does not have a direct and immediate effect upon an employee's present or future employment status, the litigation is deemed of merely peripheral concern to National Labor Relations Act and hence is cognizable in state courts, but state court jurisdiction is preempted where the dispute involving internal union affairs also has a direct and immediate effect upon present or future employment. Magallanes v Laborers' International Union (1974, 2nd Dist) 40 Cal App 3d 809, 115 Cal Rptr 428, 88 BNA LRRM 2446, cert den (1975) 419 US 1121, 42 L Ed 2d 820, 95 S Ct 803, 88 BNA LRRM 2679, 75 CCH LC P 10577.
Where gravamen of complaint is that unlawful attempt is being made by president of union to use power of union for selfish and personal aggrandizement of individuals not connected with labor, no labor dispute is involved. NLRB does not have exclusive jurisdiction, and state court can grant injunction. S-M News Co. v Simons (1952) 279 App Div 364, 110 NYS2d 174, 29 BNA LRRM 2483, 21 CCH LC P 66775; S-M News Co. v Simons (1952, Sup) 114 NYS2d 462, 30 BNA LRRM 2163.
Where dispute involved is one affecting interstate commerce, it is within jurisdiction of NLRB and is excluded from jurisdiction of Pennsylvania state board by terms of Pennsylvania statute. Re Abbotts Dairies, Inc. (1941) 341 Pa 145, 19 A2d 128, 8 BNA LRRM 1141, 4 CCH LC P 60382.
Kansas state court had authority to enjoin or limit trespassory picketing where union failed to file complaint with NLRB following demand of employer to stop picketing; if, after receiving from employer or property owner notice to cease picketing, union files complaint with NLRB and NLRB takes jurisdiction, Kansas state court has power to enjoin trespassory picketing only where there is shown to be actual violence or threat of immediate violence or some obstruction to free use of property by public that immediately threatens public health and safety or that denies to employer or his customers reasonable ingress and egress to and from employer's place of business. Shirley v Retail Store Employees Union (1979) 225 Kan 470, 592 P2d 433, 101 BNA LRRM 2844, 86 CCH LC P 11509.
In suit for temporary injunction to enjoin labor union from entering into a contract with a motor coach company as to wages and employment of plaintiff and its other employees in which the petition alleges that such contract would be in violation of an NLRB order, the petition showed upon its face that the court was wholly without jurisdiction to enter any order with reference to the matter in question because it involved the construction of this act (29 USCS §§ 141 et seq.). Amalgamated Ass'n of S. E. R. & M. C. E. v McDowell (1941, Tex Civ App) 150 SW2d 866, 8 BNA LRRM 1098, 4 CCH LC P 60475.
Where union designated as bargaining agent of employees of bus company filed charges before NLRB that bus company, through coercion and intimidation, had caused its bus drivers to effectuate individual contracts of employment and thereby interfered with, restrained, and coerced its employees in exercise of rights granted under 29 USCS § 157, this constituted charge of unfair labor practices within exclusive jurisdiction of NLRB, and state court was without jurisdiction of action by employees of such bus company to enjoin said union from acting as bargaining agent. Brotherhood of Railroad Trainmen v Owens (1942, Tex Civ App) 165 SW2d 128, 11 BNA LRRM 689, 6 CCH LC P 61280.
20. State police power regulations
The NLRA does not exclude a state's historic powers over such traditionally local matters as public safety and order and the use of streets and highways. Garner v Teamsters, Chauffeurs & Helpers Local Union (1953) 346 US 485, 98 L Ed 228, 74 S Ct 161, 33 BNA LRRM 2218, 24 CCH LC P 68020.
The state's power to regulate labor relations is derived from the police power, and it may not in the exercise of that power encroach upon the federal domain. Allen-Bradley Local, etc., Workers of America v Wisconsin Employment Relations Board (1941) 237 Wis 164, 295 NW 791, 7 BNA LRRM 745, 3 CCH LC P 60215, affd (1942) 315 US 740, 86 L Ed 1154, 62 S Ct 820, 10 BNA LRRM 520, 5 CCH LC P 51135.
Unless and until state regulation conflicts and interferes with federal regulation in National Labor Relations Act, state may, under its police power, regulate impact of union activities on local conditions. AFL v Mann (1945, Tex Civ App) 188 SW2d 276, 16 BNA LRRM 634, 16 BNA LRRM 685, 9 CCH LC P 62593, 9 CCH LC P 62675.
B. State Legislation
21. Generally
If Congress has protected union conduct which a state has forbidden, state legislation must yield. International Union of United Auto., etc. International Union of United Auto., etc. Workers v O'Brien (1950) 339 US 454, 94 L Ed 978, 70 S Ct 781, 26 BNA LRRM 2082, 18 CCH LC P 65761.
The NLRA does not exclude state power over injurious conduct which the NLRB is without power to prevent. Garner v Teamsters, Chauffeurs & Helpers Local Union (1953) 346 US 485, 98 L Ed 228, 74 S Ct 161, 33 BNA LRRM 2218, 24 CCH LC P 68020.
Where it is clear that activities which a state purports to regulate are concerted activities protected by 29 USCS § 157, or constitute an unfair labor practice under 29 USCS § 158, due regard for the federal enactment requires that state jurisdiction must yield, regardless of whether the state acts through laws of broad general application rather than through laws specifically directed toward the governance of industrial relations. San Diego Bldg. Trades Council v Garmon (1959) 359 US 236, 3 L Ed 2d 775, 79 S Ct 773, 43 BNA LRRM 2838, 37 CCH LC P 65367.
With regard to doctrine of preemption of state court jurisdiction in favor of National Labor Relations Board's jurisdiction when activity is arguably prohibited by National Labor Relations Act (29 USCS §§ 151 et seq.), general applicability of state cause of action is not sufficient alone to exempt it from preemption; when state law of general applicability, rather than law specifically directed toward governance of industrial relations, is invoked in connection with labor dispute, pertinent inquiry is whether two potentially conflicting statutes (state law and National Labor Relations Act) were brought to bear on precisely same conduct. Sears, Roebuck & Co. v San Diego County Dist. Council of Carpenters (1978) 436 US 180, 56 L Ed 2d 209, 98 S Ct 1745, 98 BNA LRRM 2282, 83 CCH LC P 10582.
National Labor Relations Act establishes general and uniform jurisdiction over labor relations in board which may not be varied or denied by state statutes or decisions. NLRB v Blount (1942, CA8) 131 F2d 585, 11 BNA LRRM 624, 6 CCH LC P 61312, cert den (1943) 318 US 791, 87 L Ed 1157, 63 S Ct 995, 12 BNA LRRM 890.
This act (29 USCS §§ 141 et seq.) does not prohibit state from legislating with respect to the maintenance of proper relations between employers and employees in charitable hospitals; hence, state labor board, acting under state law, had jurisdiction thereof. Utah Valley Hospital v Industrial Com. of Utah (1952, CA10 Utah) 199 F2d 6, 30 BNA LRRM 2664, 22 CCH LC P 67172.
The courts of the state of New York may function in the area comprehending labor relations which the national labor relations board has no express power to prevent and which will be entirely ungoverned if not governed by the state. Isbrandtsen Co. v Schelero (1954, DC NY) 118 F Supp 579, 33 BNA LRRM 2398.
Payment of assistance and welfare benefits under state law to striking union employees constitutes at most an indirect interference in labor-management relations and is not barred by the provisions of this act [29 USCS §§ 141 et seq. of this title]. ITT Lamp Div. of International Tel. & Tel. Corp. v Minter (1970, DC Mass) 318 F Supp 364, 76 BNA LRRM 2202, 64 CCH LC P 11465, affd (1970, CA1 Mass) 435 F2d 989, 76 BNA LRRM 2204, 64 CCH LC P 11355, cert den (1971) 402 US 933, 28 L Ed 2d 868, 91 S Ct 1526, 77 BNA LRRM 2023, reh den (1971) 404 US 874, 30 L Ed 2d 120, 92 S Ct 27.
Where applicable, the National Labor Relations Act pre-empts a Puerto Rican statutory prohibition against private detectives and agencies rendering services to an employer with whom a labor union has negotiated a collective bargaining agreement for the rendering of equal services or when, upon expiration of a collective bargaining agreement, the parties are negotiating a new agreement. Wackenhut Corp. v Calero (1973, DC Puerto Rico) 362 F Supp 715, 85 BNA LRRM 2124, 72 CCH LC P 14164.
State laws may not be used to restrict activities protected by 29 USCS §§ 157 or 158. Hawaiian Tel. Co. v Hawaii Dept. of Labor & Industrial Relations (1974, DC Hawaii) 378 F Supp 791, 86 BNA LRRM 3058, revd on other grounds (1980, CA9 Hawaii) 614 F2d 1197, 103 BNA LRRM 3042, 88 CCH LC P 11968, cert den (1980) 446 US 984, 64 L Ed 2d 840, 100 S Ct 2965, 104 BNA LRRM 2431, 88 CCH LC P 12071.
State's welfare legislation which does not exclude from public assistance (as individuals presumed unwilling to work, or to be wrongfully refusing to work) participants in lawful labor dispute, is not inconsistent with, or frustrative of federal labor law's full effectiveness, or violative of Supremacy Clause of Constitution (Constitution Article 6 Clause 2). Super Tire Engineering Co. v McCorkle (1976, DC NJ) 412 F Supp 192, 92 BNA LRRM 2589, affd (1977, CA3 NJ) 550 F2d 903, 94 BNA LRRM 2977, cert den (1977) 434 US 827, 54 L Ed 2d 86, 98 S Ct 106, 96 BNA LRRM 2513, reh den (1978) 434 US 1025, 54 L Ed 2d 773, 98 S Ct 753.
State Labor standards enforcement agency is enjoined from enforcement of civil and criminal statutes relating to intentional failure to pay as wages pro rata accumulated vacation pay against employers asserting defense of either ERISA or NLRA pre-emption. California Hospital Asso. v Henning (1983, CD Cal) 4 EBC 1230, 26 BNA WH Cas 18, 96 CCH LC P 55384.
Except where out-of-state workers are recruited through interstate clearance system under Wagner-Peyser Act (29 USCS § 49 et seq.), state law pertaining to inspections of farm labor camps is superseded as result of preemption under Occupational Safety and Health Act. Five Migrant Farmworkers v Hoffman (1975) 136 NJ Super 242, 345 A2d 378.
This act (29 USCS §§ 141 et seq.) does not ipso facto preclude state legislation applicable to the same situations, but congressional intent to preclude state regulation must be clearly manifested. Davega City Radio, Inc. v State Labor Relations Bd. (1939) 281 NY 13, 22 NE2d 145, 4 BNA LRRM 899, 1 CCH LC P 18398.
In an action involving interstate commerce, the policy of this act (29 USCS §§ 141 et seq.) must be respected by state courts, and the substantive rights concerning collective bargaining which this statute creates should not be impaired by construing a state statute to cover situations which were nonexistent when the statute was passed. Markham & Callow, Inc. v International Woodworkers of America, etc. (1943) 170 Or 517, 135 P2d 727, 7 CCH LC P 61574.
22. Labor relations statutes, generally
Enactment of a state labor relations act cannot override the authority of the federal government. Consolidated Edison Co. v NLRB (1938) 305 US 197, 83 L Ed 126, 59 S Ct 206, 3 BNA LRRM 645, 1 CCH LC P 17038.
An interstate bus company was entitled to injunction in a federal court against mediation by a state agency of a labor dispute as required by a state statute, which gives state board power to require hearings, file reports, require resumption of collective bargaining and good faith attempt to settle disputes, where the bus company showed that the state scheme conflicted with the scheme of the Federal Labor Relations Act and NLRB. Grand Rapids City Coach Lines, Inc. v Howlett (1955, DC Mich) 137 F Supp 667, 37 BNA LRRM 2259, 29 CCH LC P 69661.
Public Law 93-360, vesting jurisdiction in NLRB over labor disputes involving nonprofit hospitals, pre-empts jurisdiction of state labor relations board over such hospitals. Methodist Hospital of Brooklyn v New York State Labor Relations Board (1974, SD NY) 382 F Supp 459, 87 BNA LRRM 2642.
State statute which prohibited employers from making non-membership in labor union condition of employment was preempted by sole and exclusive jurisdiction of National Labor Relations Board. Bukovac v Daniel Constr. Co. (1979, WD Va) 469 F Supp 176, 101 BNA LRRM 2935, 86 CCH LC P 11456.
State labor relations board may enforce state act at least until such time as it is ousted by exercise of NLRB of its jurisdiction. Davega City Radio, Inc. v State Labor Relations Bd. (1939) 281 NY 13, 22 NE2d 145, 4 BNA LRRM 899, 1 CCH LC P 18398.
The mere fact that the Congress has enacted a statute defining unfair labor practice affecting interstate commerce and creating an agency for its enforcement does not preclude a state legislature from also enacting a statute on the same general subject and creating an agency for enforcing the state statute, regardless of how specifically the practice may be defined in the federal act. International Brotherhood of Electrical Workers, etc. v Wisconsin Employment Relations Bd. (1944) 245 Wis 532, 15 NW2d 823, 15 BNA LRRM 610, 8 CCH LC P 62359.
23. --Particular legislation
A provision in a state employment act is not in conflict with the enacted policies of Congress by making it an unfair labor practice for an employer to enter into an all-union agreement with representatives of his employees unless approved by a specified majority of the employees, nor is an order by a state employment relations board in violation of enacted policies of Congress by requiring an employer to cease and desist from giving effect to maintenance-of-membership clause of a collective agreement. Algoma Plywood & Veneer Co. v Wisconsin Employment Relations Bd. (1949) 336 US 301, 93 L Ed 691, 69 S Ct 584, 23 BNA LRRM 2402, 16 CCH LC P 65013.
New York Labor Law §§ 800-805 are most likely preempted by national Labor Relations Act. Hanks v General Motors Corp. (1990, CA8 Mo) 906 F2d 341, 5 BNA IER Cas 755, 134 BNA LRRM 2508, 116 CCH LC P 10226.
West Virginia neutrality statute, which provides that members of department of public safety are not to aid or assist either party when labor dispute is involved, is preempted by federal labor law, since interpretation and application of state statute creates impediment to clear federal purpose of protection of free expression of peaceful economic forces in strike situations. Rum Creek Coal Sales, Inc. v Caperton (1992, CA4 W Va) 971 F2d 1148, 141 BNA LRRM 2035, 123 CCH LC P 10345.
The Kansas state labor act does not on its face conflict with this act 60 F Supp 51. Stapleton v Mitchell (1945, DC Kan) 60 F Supp 51, 16 BNA LRRM 560, 9 CCH LC P 62574, app dismd (1945) 326 US 690, 90 L Ed 406, 66 S Ct 172.
State law prohibiting employer with 3 or more adverse NLRB rulings from doing business with state is pre-empted by National Labor Management Relations Act (29 USCS §§ 141 et seq.). Gould, Inc. v Wisconsin Dept. of Industry, Labor & Human Relations (1983, WD Wis) 576 F Supp 1290, 115 BNA LRRM 2104, 99 CCH LC P 10656, affd in part and revd in part (1984, CA7 Wis) 750 F2d 608, 117 BNA LRRM 3337, 102 CCH LC P 11298, affd (1986) 475 US 282, 89 L Ed 2d 223, 106 S Ct 1057, 121 BNA LRRM 2737, 103 CCH LC P 11704.
Statute creating state agency to resolve strikes, lockouts or other labor disputes is most likely preempted, since agency's actions would have and were intended to have real effect on negotiations. New York News, Inc. v New York (1990, SD NY) 745 F Supp 165, 135 BNA LRRM 2195, 118 CCH LC P 10591.
City ordinance which makes it unlawful to hire replacement workers during strikes or lockouts and forbids recruitment or hiring of replacement workers when threat to public safety is likely is preempted. Greater Boston Chamber of Commerce v Boston (1991, DC Mass) 778 F Supp 95, 138 BNA LRRM 2825, 121 CCH LC P 10148.
Minnesota's successor statute, which makes new employer liable for obligations of predecessor's collective bargaining agreement where agreement contains successor clause, is preempted by National Labor Relations Act. United Steelworkers v St. Gabriel's Hosp. (1994, DC Minn) 871 F Supp 335, 148 BNA LRRM 2129.
Regulation of union security provisions is not matter of exclusive federal concern, but states are free to pursue their own more restrictive policies, and labor organization's petition for declaration that security provisions were valid and enforceable (in absence of all-union referendum required by Colorado Labor Peace Act) was refused. Communications Workers of America v Western Electric Co. (1976) 191 Colo 128, 551 P2d 1065, 93 BNA LRRM 2176, app dismd (1977) 429 US 1067, 50 L Ed 2d 785, 97 S Ct 799, 94 BNA LRRM 2338, 80 CCH LC P 53878, reh den (1977) 430 US 923, 51 L Ed 2d 602, 97 S Ct 1341.
Suit under state service letter statute alleging that employer's letter did not state true reasons for plaintiff's discharge from employment and that plaintiff was in fact terminated for organizational activity was not preempted by National Labor Relations Act (29 USCS §§ 151 et seq.) where employer's underlying conduct (giving of false statement as to reasons for plaintiff's discharge) was not protected under NLRA, and overriding state interest existed in requiring state employers to give truthful service letters. Collins v Industrial Bearing & Transmission Co. (1978, Mo App) 575 SW2d 875.
Ongoing representation proceeding before NLRB preempts state jurisdiction, and employer's appeal from final order of Pennsylvania Labor Relations Board will be dismissed, where NLRB has taken jurisdiction of petition by union to be recognized as sole collective bargaining representative for professional and non-professional employees, and granted comity to earlier certification by Pennsylvania Labor Relations Board, according to such certification same effect as that of NLRB certification. Employees of Harrisburg Hospital (Mental Health Center) v Harrisburg Hospital (1976) 24 Pa Cmwlth 634, 358 A2d 134.
The Colorado labor peace act as a whole is not unconstitutional on the theory that it infringes on the field pre-empted by this act or that it is in direct or fatal conflict with said act. American Federation of Labor v Reilly (1944) 113 Colo 90, 155 P2d 145, 15 BNA LRRM 744, 9 CCH LC P 62462, 160 ALR 873.
Wisconsin labor relations act was an effective exercise of police power even in labor relations involving interstate commerce because this act (29 USCS §§ 141 et seq.) did not expressly exclude states from the exercise of police power over such matters. Wisconsin Labor Relations Board v Fred Rueping Leather Co. (1938) 228 Wis 473, 279 NW 673, 1 CCH LC P 18154, 117 ALR 398.
Provisions of Wisconsin employment relations act that the employees shall have the right to refrain from the concerted activities authorized by the statute do not conflict with this act (29 USCS §§ 151 et seq.). Christoffel v Wisconsin Employment Relations Bd. (1943) 243 Wis 332, 10 NW2d 197, 12 BNA LRRM 830, 7 CCH LC P 61669, cert den (1943) 320 US 776, 88 L Ed 466, 64 S Ct 90, 13 BNA LRRM 850.
24. Statutes regulating strikes
A state statute which requires, as a prerequisite to calling a strike, notice to be served upon a state administrative board in the event the parties are unable to settle their dispute, to be followed by mediation, and if that is unsuccessful by a strike vote, within 20 days, by a majority of the employees belonging to the appropriate collective bargaining unit, is invalid as conflicting with 29 USCS § 158(d), under which the prescribed strike notice can be given 60 days before contract termination or modification, no majority authorization for any strike is required, and the bargaining unit established in accordance therewith may be inconsistent with that required by state regulation. International Union of United Auto., etc. Workers v O'Brien (1950) 339 US 454, 94 L Ed 978, 70 S Ct 781, 26 BNA LRRM 2082, 18 CCH LC P 65761.
The field of regulation of peaceful strikes for higher wages is preempted by federal law, which expressly recognizes, qualifies, and regulates the right to strike, establishes certain prerequisites for any strike over contract termination or modification, forbids strikes for certain objectives, and details procedures for strikes which might create a national emergency (29 USCS § 158). International Union of United Auto., etc. Workers v O'Brien (1950) 339 US 454, 94 L Ed 978, 70 S Ct 781, 26 BNA LRRM 2082, 18 CCH LC P 65761.
Congressional imposition of restrictions on strikes which might create national emergencies shows that Congress has closed to state regulation the field of peaceful strikes in industries affecting interstate commerce. Amalgamated Asso., etc. v Wisconsin Employment Relations Bd. (1951) 340 US 383, 95 L Ed 364, 71 S Ct 359, 27 BNA LRRM 2385, 19 CCH LC P 66193, 22 ALR2d 874.
A state statute requiring compulsory arbitration of certain labor disputes, including determination of union demands such as assignment of workers to certain shifts, is in conflict with federal labor legislation under which similar problems of work scheduling and shift assignment have been held appropriate subject for collective bargaining, and is therefore invalid. Amalgamated Asso., etc. Amalgamated Asso., etc. v Wisconsin Employment Relations Bd. (1951) 340 US 383, 95 L Ed 364, 71 S Ct 359, 27 BNA LRRM 2385, 19 CCH LC P 66193, 22 ALR2d 874.
Federal labor policy preempts authority of state labor relations board to grant employer covered by National Labor Relations Act order enjoining union and members from continuing to refuse to work overtime pursuant to union policy to put economic pressure on employer in negotiations for renewal of expired collective bargaining agreement. International Asso. of Machinists & Aerospace Workers v Wisconsin Employment Relations Com. (1976) 427 US 132, 49 L Ed 2d 396, 96 S Ct 2548, 92 BNA LRRM 2881, 78 CCH LC P 11476).
Construction of Michigan state labor mediation act authorizing discharge of strikers who fail to give required notice and fail to observe cooling-off period conflicts with the provisions of National Labor Relations Act (29 USCS §§ 151 et seq.). Hamilton v NLRB (1947, CA6) 160 F2d 465, 19 BNA LRRM 2554, 12 CCH LC P 63673, cert den (1947) 332 US 762, 92 L Ed 348, 68 S Ct 65, 20 BNA LRRM 2677.
Minnesota's striker replacement law, which provides that it is unfair labor practice for employers to hire permanent replacement employees during strike or lockout, is preempted by LMRA. Employers Ass'n v United Steelworkers (1994, CA8 Minn) 32 F3d 1297, 147 BNA LRRM 2004.
Illinois Burial Rights Act, passed in response to strike by union of gravediggers, which requires that cemeteries and unions agree on pool of workers to perform interments for persons whose religious faith requires that their dead be buried within one or two days of death, is preempted by NLRA, since it is direct state intrusion into collective bargaining process. Cannon v Edgar (1994, CA7 Ill) 33 F3d 880, 147 BNA LRRM 2193, 128 CCH LC P 11177.
State right-to-work law prohibiting striking employees from using insulting or threatening language directed at non-striking employees to dissuade them from exercising right-to-work is not pre-empted by Labor Management Relations Act (29 USCS §§ 141 et seq.). United Steelworkers of America v Dalton (1982, ED Va) 544 F Supp 282.
State regulation of strike violence is not pre-empted by Federal labor law. Magic Chef, Inc. v International Molders & Allied Workers Union (1983, ED Tenn) 581 F Supp 772, 116 BNA LRRM 3102.
Statute creating state agency to resolve strikes, lockouts or other labor disputes is most likely preempted, since agency's actions would have and were intended to have real effect on negotiations. New York News, Inc. v New York (1990, SD NY) 745 F Supp 165, 135 BNA LRRM 2195, 118 CCH LC P 10591.
Illinois statute which requires unions and all cemeteries having unions to negotiate and enter into agreement establishing labor pool that must perform certain burials during course of strike or labor dispute, is preempted by LMRA, since statute infringes on union members' right to strike, and compels union to negotiate substantive collective bargaining term. Cannon v Edgar (1993, ND Ill) 825 F Supp 1349, 143 BNA LRRM 2784.
Federal labor law does not preempt state statute prohibiting transportation of strike breakers. Warren v State, Dept. of Labor (1975, La App 1st Cir) 313 So 2d 6, 90 BNA LRRM 2393.
State statute requiring union to give notice of strike in labor dispute affecting interstate commerce is invalid, as NLRB does not require notice and is controlling in peaceful strikes for lawful purpose. Faribault Daily News, Inc. v International Typographical Union (1952) 236 Minn 303, 53 NW2d 36, 29 BNA LRRM 2637, 21 CCH LC P 66879.
The National Labor Relations Act (29 USCS §§ 151 et seq.) (aside from fact that charitable hospital employees are exempt from its terms) does not operate to nullify regulatory power of states with respect to strikes in enterprises which affect public health, safety, or welfare, except in fields of endeavor preempted by federal government. Fairview Hospital Ass'n v Public Bldg. Service, etc. Employees Union (1954) 241 Minn 523, 64 NW2d 16, 25 CCH LC P 68285.
State statute which makes it unlawful for employer to hire permanent strike replacements is not preempted by National Labor Relations Act. Midwest Motor Express, Inc. v International Brotherhood of Teamsters, etc. Local 120 (1992, Minn Dist Ct) 139 BNA LRRM 2563, affd, remanded (1993, Minn App) 494 NW2d 895, 142 BNA LRRM 2424, review gr (1993, Minn) 1993 Minn LEXIS 198.
Minnesota's Striker Replacement Act (which makes it unfair labor practice for employer to grant or offer to grant status of permanent replacement employee to person for performing bargaining unit work for employer during lockout of employees in labor organization or during strike of employees in labor organization authorized by representative of employees) is not preempted by federal labor law. Midwest Motor Express, Inc. v International Brotherhood of Teamsters, etc., Local 120 (1993, Minn App) 494 NW2d 895, 142 BNA LRRM 2424, review gr (1993, Minn) 1993 Minn LEXIS 198.
25. --Strikes against public utilities
Wisconsin Public Utility Anti-Strike Law (Wisconsin Stats §§ 111.50-111.65) conflicts with the National Labor Relations Act, as amended by the Labor Management Relations Act, expressly safeguarding the right of employees to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, for such federal legislation applies even to privately owned public utilities whose business and activities are carried on wholly within a single state. Amalgamated Asso., etc. v Wisconsin Employment Relations Bd. (1951) 340 US 383, 95 L Ed 364, 71 S Ct 359, 27 BNA LRRM 2385, 19 CCH LC P 66193, 22 ALR2d 874.
A state statute authorizing a governor to seize strike-bound public utilities when the parties do not accept the recommendations of state agencies for settlement of labor contract dispute is in conflict with 29 USCS § 157, which guarantees the right to bargain collectively and the right to strike. Amalgamated Asso. S., E. R. & M. C. E. v Missouri (1963) 374 US 74, 10 L Ed 2d 763, 83 S Ct 1657, 53 BNA LRRM 2394, 47 CCH LC P 50839, reh den (1963) 375 US 870, 11 L Ed 2d 100, 84 S Ct 29.
Congress has so completely pre-empted regulation of peaceful strikes for higher wages in industries affecting interstate commerce, including public utilities, as to render invalid Florida public utility arbitration law (in general prohibiting work stoppage and providing for arbitration) as being in direct conflict with federal legislation. Henderson v State (1953, Fla) 65 So 2d 22, 32 BNA LRRM 2169, 23 CCH LC P 67584.
It was not the intent of the federal government to prohibit a state from making legislative provision for protection against strikes or lockouts in public utilities affecting the safety, health, and welfare of the citizens. New Jersey Bell Tel. Co. v Communications Workers, etc. (1950) 5 NJ 354, 75 A2d 721, 26 BNA LRRM 2585, 18 CCH LC P 65997.
26. Statutes regulating jurisdictional strikes
An injunction issued by a state court against union picketing in the course of a jurisdictional strike, which included secondary boycott activity, was properly grounded on a state anti-jurisdictional activity statute, and properly issued in the absence of NLRB assertion of jurisdiction, since the state act upon which the injunction was issued was not inconsistent with the federal act, and did not encroach upon the area of control vested in the NLRB. Sommer v Metal Trades Council (1953) 40 Cal 2d 392, 254 P2d 559, 32 BNA LRRM 2004, 23 CCH LC P 67455.
27. Statutes regulating union-security arrangements
Neither 29 USCS § 160(a) nor 29 USCS § 158(3) prevent a state from making it an unfair labor practice for an employer to enter into an all-union agreement with representatives of his employees unless approved by a specific majority of the employees. Algoma Plywood & Veneer Co. v Wisconsin Employment Relations Bd. (1949) 336 US 301, 93 L Ed 691, 69 S Ct 584, 23 BNA LRRM 2402, 16 CCH LC P 65013.
Union security deauthorization procedures contained in Colorado labor law were preempted, because state law placed greater restraints on unit members' right to file deauthorization petition than NLRA by limiting such filing to 15-day window period; Congress, through 29 USCS § 164(b), intended to authorize only those state laws that are more restrictive of union security agreements than federal law, so that federal law will take precedence over any less restrictive state law. Albertson's/Max Food Warehouse (1999) 329 NLRB No. 44, 162 BNA LRRM 1169, 1999- CCH NLRB P 15303.
Fact that state right-to-work law may go beyond regulation of union security agreements and may regulate other activities, also regulated by National Labor Relations Act (29 USCS §§ 151 et seq.), does not bring such activity within scope of state jurisdiction nor create exception to exclusive jurisdiction of National Labor Relations Board as to those activities; right-to-work exception in 29 USCS § 164(b) does not apply to activities unrelated to union security agreements even though such unrelated activity may also be regulated within framework of statute styled as right-to-work law. Johnson v Electronic Sales & Service Co. (1978, La App 2d Cir) 363 So 2d 716.
28. Statutes requiring licensing of union agents
A state statute requiring a license for business agents of labor unions, prescribing their qualifications, and making the issuance of the license dependent on determination by state officers that they possess such qualifications, is invalid as interfering with "full freedom" which employees are given under the NLRA to choose their own collective bargaining representatives, and this preemption obtains despite the fact that the NLRB has held that an employer must bargain with a duly selected union agent even though he does not have a state license, because collective bargaining under the NLRA contemplates bargaining which is free of the coercive influences of possible criminal and contempt prosecutions under state statute. Hill v Florida (1945) 325 US 538, 89 L Ed 1782, 65 S Ct 1373, 16 BNA LRRM 734, 9 CCH LC P 51208, reh den (1945) 326 US 804, 90 L Ed 489, 66 S Ct 1.
The possibility of criminal and contempt prosecutions for violation of a state statute requiring licensing of labor unions is enough to render it invalid as interfering with the full freedom which employees are given under the NLRA to choose their own collective bargaining representatives, even though the requirements in the statute of a finding of information and an annual license fee of $ 1 are probably insufficient, of themselves, to establish a conflict with the Act. Hill v Florida (1945) 325 US 538, 89 L Ed 1782, 65 S Ct 1373, 16 BNA LRRM 734, 9 CCH LC P 51208, reh den (1945) 326 US 804, 90 L Ed 489, 66 S Ct 11.
State statute, requiring "labor organizer" before soliciting members to make written request for an organizer's card and issuance to him of such card by state secretary of state (who has no unbridled discretion to refuse to issue the card), is not unconstitutional or in conflict with National Labor Relations Act (29 USCS §§ 151 et seq.). Coutlakis v State (1954) 160 Tex Crim 249, 268 SW2d 192, 25 CCH LC P 68261, 25 CCH LC P 68396.
29. Statutes regulating association with unions of persons convicted of criminal offenses
A provision of a state act which bars collection from pier superintendents, hiring agents, longshoremen, and port watchmen of dues or other levies on behalf of a union, any of whose officers or agents has been convicted of a felony, and has not been pardoned or given a certificate of good health by the state board of parole, is not in conflict with federal law providing that no person who has been convicted of or served any part of a prison term resulting from his conviction shall serve as a union official (29 USCS § 540). De Veau v Braisted (1960) 363 US 144, 4 L Ed 2d 1109, 80 S Ct 1146, 46 BNA LRRM 2304, 40 CCH LC P 66583, reh den (1960) 364 US 856, 5 L Ed 2d 80, 81 S Ct 30.
Federal Labor law does not preempt state provisions barring persons convicted of felonies, misdemeanors involving moral turpitude, or other specified crimes from collecting dues for union. International Longshoremen's Asso. v Waterfront Com. of New York Harbor (1981, CA2 NY) 642 F2d 666, 106 BNA LRRM 2630, 90 CCH LC P 55288, cert den (1981) 454 US 966, 70 L Ed 2d 383, 102 S Ct 509, 108 BNA LRRM 2923.
30. Wage payment statutes
Oregon statute that requires contractors on public projects to pay time and one-half for all hours worked in excess of eight hours per day unless workers are covered by terms of collective bargaining agreement is not preempted by LMRA, since terms of statute do not encompass matters within provisions of 29 USCS §§ 157 and 158, and statute does not interfere with collective bargaining relationships. Babler Bros., Inc. v Roberts (1993, CA9 Or) 995 F2d 911, 93 CDOS 4207, 93 Daily Journal DAR 7230, 143 BNA LRRM 2642, 1 BNA WH Cas 2d 745, 125 CCH LC P 57399.
Application of California wage order (No. 11-80), which requires employers in broadcast industry to pay double time for all hours worked over twelve hours in day, unless employees are covered by terms of collective bargaining agreement providing specified minimum overtime benefits, to gap period between end of one collective bargaining agreement and beginning of non-retroactive new bargaining agreement is not preempted by federal labor laws promoting collective bargaining process. National Broadcasting Co. v Bradshaw (1995, CA9 Cal) 95 CDOS 6863, 95 Daily Journal DAR 11753, 150 BNA LRRM 2206, 23 Media L R 2434, 2 BNA WH Cas 2d 1491, 130 CCH LC § p§ t57971.
National Labor Relations Act does not preempt application of state prevailing wage law that requires payment of prevailing wages to employees in apprenticeship programs that have not received state approval but allows payment of lower apprenticeship wages to employees participating in state approved apprenticeship programs. Dillingham Constr. N.A. v County of Sonoma (1999, CA9) 190 F3d 1034, 99 CDOS 7438, 99 Daily Journal DAR 9423, 162 BNA LRRM 2193, 5 BNA WH Cas 2d 970, 139 CCH LC P 58735.
State hospital payments law which seeks to limit hospital costs and which may impact on hospital's ability to grant pay increases to employees is not pre-empted by federal labor law as inpermissible interference with balance of power in collective bargaining. Massachusetts Nurses Asso. v Dukakis (1983, DC Mass) 570 F Supp 628, 114 BNA LRRM 2456, 98 CCH LC P 10464, affd (1984, CA1 Mass) 726 F2d 41, 115 BNA LRRM 2713, 100 CCH LC P 10798.
State statute requiring nonunion public contractors to pay their employees overtime for all hours worked in excess of eight hours per day was not preempted by NLRA. Babler Bros., Inc. v Roberts (1991, DC Or) 761 F Supp 97, 137 BNA LRRM 2317, 30 BNA WH Cas 481, 121 CCH LC P 56898, affd (1993, CA9 Or) 995 F2d 911, 93 CDOS 4207, 93 Daily Journal DAR 7230, 143 BNA LRRM 2642, 1 BNA WH Cas 2d 745, 125 CCH LC P 57399.
The Rhode Island weekly wage payment law is not superseded by 29 USCS §§ 141 et seq., and the checkoff of union dues is not valid under any collective bargaining agreement. Chabot v Prudential Ins. Co. (1950) 77 RI 396, 75 A2d 317, 26 BNA LRRM 2496, 18 CCH LC P 65920.
31. Unemployment compensation statutes
Florida unemployment compensation statute which disqualified person from compensation merely because he had filed unfair labor practice charge against his former employer was obstacle to operation of federal labor laws and consequently conflicted with Supremacy Clause of the Constitution [Const. art. 6, cl. 2]. Nash v Florida Industrial Com. (1967) 389 US 235, 19 L Ed 2d 438, 88 S Ct 362, 66 BNA LRRM 2625, 56 CCH LC P 12323.
In determining whether a state unemployment compensation scheme for strikers is preempted by federal labor relations legislation, a relevant question is whether the receipt or expectation of receipt of unemployment compensation benefits, after the necessary waiting period, causes workers to stiffen bargaining demands beyond those they would have made without such benefits, to strike in the first instance when they would otherwise have settled, or to continue a strike for a longer period than they otherwise would. Grinnell Corp. v Hackett (1973, CA1 RI) 475 F2d 449, 82 BNA LRRM 2986, cert den (1973) 414 US 858, 38 L Ed 2d 108, 94 S Ct 164, 84 BNA LRRM 2458 and cert den (1973) 414 US 879, 38 L Ed 2d 124, 94 S Ct 59, 84 BNA LRRM 2458, reh den (1978) 435 US 938, 55 L Ed 2d 534, 98 S Ct 1514.
Where a state's payment of unemployment benefits to striking workers significantly frustrates federal policy of collective bargaining, then such state financial aid is preempted by federal labor legislation unless the unemployment scheme represents a compelling state interest so deeply rooted in local feeling and responsibility that a reviewing court cannot infer Congress has deprived states of the power to act. Grinnell Corp. v Hackett (1973, CA1 RI) 475 F2d 449, 82 BNA LRRM 2986, cert den (1973) 414 US 858, 38 L Ed 2d 108, 94 S Ct 164, 84 BNA LRRM 2458 and cert den (1973) 414 US 879, 38 L Ed 2d 124, 94 S Ct 59, 84 BNA LRRM 2458, reh den (1978) 435 US 938, 55 L Ed 2d 534, 98 S Ct 1514.
Federal law does not preempt Hawaii law allowing striking workers to collect unemployment benefits if strike does not substantially curtail productive operations of their employer. Hawaiian Tel. Co. v Hawaii Dept. of Labor & Industrial Relations (1980, CA9 Hawaii) 614 F2d 1197, 103 BNA LRRM 3042, 88 CCH LC P 11968, cert den (1980) 446 US 984, 64 L Ed 2d 840, 100 S Ct 2965, 104 BNA LRRM 2431, 88 CCH LC P 12071.
State law that requires employer to repay state unemployment benefits when worker receives backpay award is not preempted by National Labor Relations Act. Moreno Roofing Co. v Nagle (1996, CA9 Cal) 99 F3d 340, 96 CDOS 7968, 96 Daily Journal DAR 13215, 153 BNA LRRM 2705.
State law disqualifying workers refusing nonunion work from unemployment benefits is not preempted by federal labor law. Florida AFL-CIO v State Dept. of Labor & Employment Secur. (1980, ND Fla) 504 F Supp 530, 93 CCH LC P 13347, affd in part and revd in part on other grounds (1982, CA11 Fla) 676 F2d 513, 94 CCH LC P 13595.
The provisions of 29 USCS §§ 151 et seq. and their 1947 amendment were enacted for the main purpose of placing labor and management on a parity in labor matters, and the state courts are not divested of authority to try matters affecting valuable property rights, and other rights remediable in state courts. Art Steel Co. v Velazquez (1952) 201 Misc 141, 109 NYS2d 788, 29 BNA LRRM 2329, affd (1952) 280 App Div 76, 111 NYS2d 198, 29 BNA LRRM 2647, 21 CCH LC P 66842.
32. Statutes barring age discrimination
NLRA preempts statute that makes it crime for employer to use services of third party in recruiting or hiring workers to replace those engaged in labor strike, where statute was not directly aimed at preventing violence, and did nothing more than restrict employer's right to hire replacement workers during strike. Charlesgate Nursing Center v Rhode Island (1989, DC RI) 723 F Supp 859, 133 BNA LRRM 3026, 114 CCH LC P 12018.
Age discrimination prohibitions of Wisconsin fair employment act did not conflict with or frustrate the objectives of this act (29 USCS §§ 141 et seq.) so that state industrial commission lacked jurisdiction by virtue of federal pre-emption, and act of employer in terminating 38 employees between the ages of 60 and 65 pursuant to pension agreement negotiated between union and employer did not constitute an unfair labor practice under the federal law so as to pre-empt the commission from deciding the issue. Walker Mfg. Co. v Industrial Com. (1965) 27 Wis 2d 669, 135 NW2d 307, 1 BNA FEP Cas 83, 59 BNA LRRM 2454, 1 CCH EPD P 9709, 51 CCH LC P 51328.
33. Antitrust laws
A state may not enjoin under its own statutes dealing with restraint of trade or any state grounds conduct which falls within exclusive primary jurisdiction of the NLRB. Weber v Anheuser-Busch, Inc. (1955) 348 US 468, 99 L Ed 546, 75 S Ct 480, 35 BNA LRRM 2637, 27 CCH LC P 69064.
Federal labor law precludes a state court from enjoining, as a violation of a state's restraint of trade statute, a labor union's picketing of employer's plant for the purpose of compelling him to insert a clause obligating him to employ, for repair or replacement of machinery, only contractors who have collective labor agreements with the union. Weber v Anheuser-Busch, Inc. (1955) 348 US 468, 99 L Ed 546, 75 S Ct 480, 35 BNA LRRM 2637, 27 CCH LC P 69064.
State antitrust law cannot prevail in a conflict with federal labor law where Congress has sufficiently expressed its purpose to exclude state action even though that with which the federal law is concerned as a matter of labor relations is related to the state in the more inclusive area of restraint of trade. International Brotherhood of Teamsters, C. W. & H. v Oliver (1959) 358 US 283, 3 L Ed 2d 312, 79 S Ct 297, 10 Ohio Ops 2d 74, 82 Ohio L Abs 397, 43 BNA LRRM 2374, 36 CCH LC P 65161.
If collective bargaining contracts entered into by unions and employers pursuant to federal law are to be limited by state antitrust laws, it is for Congress, and not the states, to provide this limitation. International Brotherhood of Teamsters, C. W. & H. v Oliver (1959) 358 US 283, 3 L Ed 2d 312, 79 S Ct 297, 10 Ohio Ops 2d 74, 82 Ohio L Abs 397, 43 BNA LRRM 2374, 36 CCH LC P 65161.
A state may not apply its antitrust law to prevent a labor union and an employer from carrying out a portion of a collective bargaining agreement dealing with a subject matter as to which federal labor relations statutes direct them to bargain. International Brotherhood of Teamsters, C. W. & H. v Oliver (1959) 358 US 283, 3 L Ed 2d 312, 79 S Ct 297, 10 Ohio Ops 2d 74, 82 Ohio L Abs 397, 43 BNA LRRM 2374, 36 CCH LC P 65161.
A state may not invalidate, as violative of its antitrust law, a provision of a collective bargaining contract between motor carriers and a teamsters' union, proscribing terms and conditions which regulate minimum rental and other terms of lease when a motor vehicle is leased to a carrier by an owner who drives his vehicle in the carrier's service, such provision being concerned with wages paid the truck owner, and thus being a subject of mandatory collective bargaining under 29 USCS § 158(d). International Brotherhood of Teamsters, C. W. & H. v Oliver (1959) 358 US 283, 3 L Ed 2d 312, 79 S Ct 297, 10 Ohio Ops 2d 74, 82 Ohio L Abs 397, 43 BNA LRRM 2374, 36 CCH LC P 65161.
A state may not apply its antitrust law to prevent a labor union and an employer from carrying out their agreement upon a subject matter as to which federal law directs them to bargain. International Brotherhood of Teamsters, etc. v Oliver (1960) 362 US 605, 4 L Ed 2d 987, 80 S Ct 923, 14 Ohio Ops 2d 277, 46 BNA LRRM 2180, 40 CCH LC P 66511, reh den (1960) 363 US 858, 4 L Ed 2d 1740, 80 S Ct 1611.
A state court may not bar, on the ground that state antitrust violations are involved, a teamsters union and motor carriers with which the union has entered into a collective bargaining contract, a provision of the collective bargaining contract which specifies that hired or leased equipment shall be operated only by employees of the motor carriers, such provision being concerned with wages paid the lessor of the trucks, and thus being a subject of mandatory collective bargaining under the federal labor relation statutes. International Brotherhood of Teamsters, etc. International Brotherhood of Teamsters, etc. v Oliver (1960) 362 US 605, 4 L Ed 2d 987, 80 S Ct 923, 14 Ohio Ops 2d 277, 46 BNA LRRM 2180, 40 CCH LC P 66511, reh den (1960) 363 US 858, 4 L Ed 2d 1740, 80 S Ct 1611.
Federal law does not admit use of state antitrust law to regulate union activity closely related to organizational goals, although other agreements between unions and nonlabor parties may be subject to state antitrust laws. Connell Constr. Co. v Plumbers & Steamfitters Local Union No. 100, etc. (1975) 421 US 616, 44 L Ed 2d 418, 95 S Ct 1830, 89 BNA LRRM 2401, 77 CCH LC P 10873, 1975-1 CCH Trade Cases P 60341, on remand (1975, CA5 Tex) 518 F2d 553, 90 BNA LRRM 2496 and reh den (1975) 423 US 884, 46 L Ed 2d 114, 96 S Ct 156.
Garmon's "arguably subject" test does not apply as to federal preemption in antitrust cases, but rather courts engage in detailed examination to determine whether labor exemption to antitrust laws applies. Bernstein v Universal Pictures, Inc. (1975, CA2 NY) 517 F2d 976, 89 BNA LRRM 2471, 77 CCH LC P 10899, 1975-1 CCH Trade Cases P 60338, on remand (1978, SD NY) 79 FRD 59, 98 BNA LRRM 2760, 1978-2 CCH Trade Cases P 62153, 25 FR Serv 2d 1069.
34. Miscellaneous
State casino control act, which provides for comprehensive regulation of casino gambling, including regulation of unions representing industry employees, does not conflict with, and is not preempted by, § 7 of National Labor Relations Act (29 USCS § 157) to extent that it imposes certain limitations on whom casino industry employees may choose to serve as officials of their bargaining representatives. Brown v Hotel & Restaurant Employees & Bartenders International Union Local 54 (1984) 468 US 491, 82 L Ed 2d 373, 104 S Ct 3179, 5 EBC 1585, 116 BNA LRRM 2921, 101 CCH LC P 11059, later proceeding (1984, DC NJ) 597 F Supp 1431, motion den, amd (1984, DC NJ) 597 F Supp 1451, affd without op (1985, CA3 NJ) 772 F2d 893 and affd without op (1985, CA3 NJ) 772 F2d 895 and affd without op (1985, CA3 NJ) 772 F2d 895, later proceeding (1986, DC NJ) 641 F Supp 757, 109 CCH LC P 55906, affd (1987, CA3 NJ) 832 F2d 263, 126 BNA LRRM 2971, 109 CCH LC P 55907 and affd without op (1985, CA3 NJ) 772 F2d 896.
State statute which requires that specified minimum mental health care benefits be provided to state resident who is insured under general insurance policy, accident or sickness insurance policy, or employee health care plan that covers hospital and surgical expenses, is not pre-empted by National Labor Relations Act. Metropolitan Life Ins. Co. v Massachusetts (1985) 471 US 724, 85 L Ed 2d 728, 105 S Ct 2380, 6 EBC 1545, 119 BNA LRRM 2569, 102 CCH LC P 55497.
Massachusetts law (ALM GL c 6A §§ 31 et seq.) limiting reimbursement of hospital costs, does not interfere with collective bargaining and thus is not pre-empted under NLRA (29 USCS §§ 141 et seq.). Massachusetts Nurses Asso. v Dukakis (1984, CA1 Mass) 726 F2d 41, 115 BNA LRRM 2713, 100 CCH LC P 10798.
Nevada gaming control statutes and regulations (which provide for extensive reporting disclosure requirements) are not preempted by NLRA or LMRDA. Hotel Employees & Restaurant Employees Int'l Union v Nevada Gaming Com. (1993, CA9 Nev) 984 F2d 1507, 93 CDOS 595, 93 Daily Journal DAR 1229, 142 BNA LRRM 2321, 124 CCH LC P 10532.
ERISA does not pre-empt claims for breach of contract and implied duties of good faith and fair dealing arising under state insurance laws, notwithstanding that claims involve payment of benefits under collectively bargained-for plan. McLaughlin v Connecticut General Life Ins. Co. (1983, ND Cal) 565 F Supp 434, 4 EBC 1879.
Environmental ordinance, proposed by town officials to pressure employer into submission during strike, was not preempted, where it concerned health and safety of citizens and did not have direct effect on bargaining position of parties. International Paper Co. v Jay (1990, DC Me) 736 F Supp 359, 134 BNA LRRM 2188, 115 CCH LC P 10099, affd (1991, CA1 Me) 928 F2d 480, 136 BNA LRRM 2864, 118 CCH LC P 10641, 110 ALR Fed 867.
Resolution of city council, which endorsed boycott of newspaper publisher until labor dispute was resolved, was preempted by NLRA, since resolution attempted to coerce publisher through economic and public pressure. Alameda Newspapers v City of Oakland (1994, ND Cal) 94 Daily Journal DAR 11345, 146 BNA LRRM 3102.
California statute, which allows miners to work 12-hour shifts, but only if employer and union representing miners have valid collective bargaining agreement, is preempted by NLRA. Viceroy Gold Corp. v Aubry (1994, ND Cal) 858 F Supp 1007, 94 Daily Journal DAR 11771, 147 BNA LRRM 2365.
Minnesota statute which provides that it is unfair labor practice for employer to hire permanent replacements for striking employees is preempted by National Labor Relations Act. Midwest Motor Express v International Bhd. of Teamsters (1994, Minn) 512 NW2d 881, 145 BNA LRRM 2717.
District of Columbia's Displaced Workers Protection Act of 1994, which requires that contractors who take over contracts for provision of certain services must hire their predecessors' employees for period of 90 days, is not preempted by NLRA. Washington Serv. Contractors Coalition v District of Columbia (1995, App DC) 54 F3d 811, 149 BNA LRRM 2271, 130 CCH LC P 57918.
C. State Judicial and Administrative Action
1. In General
35. Generally
State courts as well as state administrative bodies are excluded from assuming control of matters expressly placed within the competence of the NLRB. Garner v Teamsters, Chauffeurs & Helpers Local Union (1953) 346 US 485, 98 L Ed 228, 74 S Ct 161, 33 BNA LRRM 2218, 24 CCH LC P 68020.
The passage of 29 USCS §§ 141 et seq., and the certification of a union under it, has not changed the common law of Illinois in regard to the suability of unincorporated labor unions. Pullman Standard Car Mfg. Co. v United Steelworkers (1945, CA7 Ill) 152 F2d 493, 17 BNA LRRM 624.
Parties must first be subject to NLRB jurisdiction before court adjudication is pre-empted. Connell v United States Steel Corp. (1975, CA5 Ala) 516 F2d 401, 89 BNA LRRM 3089, 77 CCH LC P 11019.
LMRA does not preempt action taken by city to require all successful bidders on its electric transmission line construction project to agree to enter into labor agreement with union which represented city's electrical utility employees, since requirement was imposed pursuant to valid work preservation clause in collective bargaining agreement between union and city. Associated Builders & Contractors, Inc. v Seward (1992, CA9 Alaska) 966 F2d 492, 92 CDOS 4743, 92 Daily Journal DAR 7565, 140 BNA LRRM 2539, 122 CCH LC P 10210, 1992-1 CCH Trade Cases P 69887, cert den (1993, US) 123 L Ed 2d 146, 113 S Ct 1577, 142 BNA LRRM 2808, 124 CCH LC P 10619.
1947 Amendment of National Labor Relations Act (29 USCS §§ 141 et seq.) denies powers to courts at suit of private parties with exception of jurisdiction expressly granted which does not include exercise of equity powers. Gerry of California v Superior Court of Los Angeles County (1948) 32 Cal 2d 119, 194 P2d 689, 22 BNA LRRM 2279, 15 CCH LC P 64628.
A state court cannot restrain the NLRB from exercising the powers with which it has been clothed by Congress, or review an order made by the NLRB. Keller v American Cyanamid Co. (1942) 132 NJ Eq 210, 28 A2d 41, 11 BNA LRRM 567.
36. Jurisdiction
A suit either in federal court under 29 USCS § 185(a) or in state court is proper to resolve a controversy as to which of 2 certified unions should represent employees doing particular work, even though an alternative remedy before the NLRB is available to protect the employer if he invokes it. Carey v Westinghouse Electric Corp. (1964) 375 US 261, 11 L Ed 2d 320, 84 S Ct 401, 55 BNA LRRM 2042, 48 CCH LC P 50986.
Court does not have jurisdiction to grant petition to convene three-judge court, pursuant to 28 USCS § 2284, if petitioner merely challenges actions of a Federal Administrative Agency and does not seek to assail constitutionality of Act of Congress, where petitioner-bishop, seeks only to redress actions of NLRB in attempting to exercise authority in relation to schools in his diocese, and not to make specific constitutional attack on any provision of Labor-Management Relations Act (29 USCS §§ 141 et seq.). Grutka v NLRB (1976, ND Ind) 409 F Supp 133, 91 BNA LRRM 2466.
When it is clear or may fairly be assumed that activities which a state purports to regulate are protected by 29 USCS § 157 or constitute an unfair labor practice under 29 USCS § 158, state jurisdiction must yield. Writers' Guild of America West, Inc. v Superior Court of Los Angeles County (1975, 2nd Dist) 53 Cal App 3d 468, 126 Cal Rptr 498, 91 BNA LRRM 2603, 80 CCH LC P 12030.
If it may be reasonably asserted that conduct called into question is subject to NLRB jurisdiction, state power is preempted; there is federal preemption where it is reasonably arguable that matter comes within NLRB jurisdiction. Writers' Guild of America West, Inc. v Superior Court of Los Angeles County (1975, 2nd Dist) 53 Cal App 3d 468, 126 Cal Rptr 498, 91 BNA LRRM 2603, 80 CCH LC P 12030.
Employer in state court action has responsibility to show that he is exempt from exclusive NLRB jurisdiction because he fails to meet NLRB monetary jurisdictional standards. Langrehr v United Brotherhood of Carpenters & Joiners (1975, Iowa) 236 NW2d 339, 91 BNA LRRM 2318.
State courts are without jurisdiction in matters involving labor disputes, unless it is established that such disputes are accompanied by serious violence, intimidation or coercion. International Brotherhood of Electrical Workers v Chain Lighting & Appliance Co. (1975, Miss) 309 So 2d 530, 89 BNA LRRM 2067.
State court had power to invoke provision of state trespass law against representatives of labor organization, who entered premises of private hospital with permission for limited purpose of preliminary representation of labor organization, prior to opening of polls for election which was taking place in hospital cafeteria, but who refused to vacate hospital lobby at request of authorities after polls opened; whether or not expulsion of representatives from hospital premises would permit charge of unfair labor practice or attack upon validity of election was within scope and jurisdiction of National Labor Relations Board, but availability of civil remedy by complaint to Board did not foreclose state from enforcing law relating to trespass. State v Dargon (1978) 165 NJ Super 500, 398 A2d 891.
Action taken by state authorities in cases of intrastate commerce helps determine whether federal or state board has jurisdiction; when Congress has exercised its power with regard to given employer-employee relationship, state board does not have concurrent jurisdiction, whether federal board acts or not. Pittsburgh R. Co. Substation Operators & Maintenance Employees' Case (1947) 357 Pa 379, 54 A2d 891, 20 BNA LRRM 2633, 13 CCH LC P 64028, 174 ALR 1045.
State was without jurisdiction to grant injunction to employer engaged in interstate commerce on charges against union of unlawful labor activities, where such activities were unfair labor practice and complete remedy was provided under Labor Management Relations Act. Garner v Teamsters, Chauffeurs & Helpers Local Union (1953) 373 Pa 19, 94 A2d 893, 31 BNA LRRM 2392, 23 CCH LC P 67396, affd (1953) 346 US 485, 98 L Ed 228, 74 S Ct 161, 33 BNA LRRM 2218, 24 CCH LC P 68020.
State courts are without jurisdiction of controversies under National Labor Relations Act (29 USCS §§ 151 et seq.). Oliver v International Brotherhood of Boilermakers, etc. (1944) 182 Tenn 236, 185 SW2d 525, 15 BNA LRRM 733, 9 CCH LC P 62439.
Where there was a question whether plaintiff union or another labor organization constituted the appropriate collective bargaining unit to represent the employees, state court had no jurisdiction to adjudicate the question. International Brotherhood of Teamsters v Red Arrow Freight Lines, Inc. (1953, Tex Civ App) 264 SW2d 787, 33 BNA LRRM 2685, 25 CCH LC P 68165.
To extent that NLRB orders apply in particular controversy, jurisdiction of state authorities, both administrative and judicial, is ousted. Allen-Bradley Local, etc., Workers of America v Wisconsin Employment Relations Board (1941) 237 Wis 164, 295 NW 791, 7 BNA LRRM 745, 3 CCH LC P 60215, affd (1942) 315 US 740, 86 L Ed 1154, 62 S Ct 820, 10 BNA LRRM 520, 5 CCH LC P 51135.
Mere certification of union by National Labor Relations Board as bargaining unit in particular plant is not such general assumption of jurisdiction over all employment relations of company as would oust state labor board of all jurisdiction. Wisconsin Employment Relations Bd. v Algoma Plywood & Veneer Co. (1948) 252 Wis 549, 32 NW2d 417, 22 BNA LRRM 2148, 14 CCH LC P 64526, affd (1949) 336 US 301, 93 L Ed 691, 69 S Ct 584, 23 BNA LRRM 2402, 16 CCH LC P 65013.
NLRB jurisdiction did not preempt state court jurisdiction to enjoin union from soliciting employees on employer's premises in violation of state criminal trespass law and store's no-solicitation rule. May Dept. Stores v Teamsters Union (1976) 64 Ill 2d 153, 355 NE2d 7, 93 BNA LRRM 2592.
State court jurisdiction is preempted when case for protection of 29 USCS § 157 is strong even when party aggrieved by conduct is unable to take case to National Labor Relations Board. Bescoe v Laborers' Union Local (1980) 98 Mich App 389, 295 NW2d 892, 106 BNA LRRM 2075, 90 CCH LC P 12433.
Exceptions to rule of federal presumption are (1) where conduct focuses on purely internal matters not having direct and immediate effect on employment; (2) where Congress has affirmatively indicated that state jurisdiction exists, as in 29 USCS § 185, dealing with enforcement of collective bargaining agreements; (3) where it cannot be conscientiously presumed that Congress meant to intrude so deeply into areas traditionally left to local law, such as to preempt recovery for malicious defamation or to preempt prevention of violence; and (4) where the particular rule of law sought to be invoked is so structured and administered that, in virtually all instances, it is safe to presume that judicial supervision will not disserve interests promoted by federal labor statutes, as for example enforcement of implied covenant of fair representation. Writers' Guild of America West, Inc. v Superior Court of Los Angeles County (1975, 2nd Dist) 53 Cal App 3d 468, 126 Cal Rptr 498, 91 BNA LRRM 2603, 80 CCH LC P 12030.
A jurisdictional dispute between two unions over the work of operating floating cranes is more than "arguably subject" to 29 USCS § 157 or 158 since the plaintiff not only filed charges with the National Labor Relations Board that such conduct constituted an unfair labor practice, but the National Labor Relations Board Regional Director issued a formal complaint against defendant based upon such charges; therefore, both the state and the federal courts must defer to the exclusive jurisdiction of the Board to determine what, if any, remedy may be available to the aggrieved party. International Union of Operating Engineers v Brady-Hamilton Stevedore Co. (1971) 258 Or 484, 483 P2d 1303, 78 BNA LRRM 2407, 65 CCH LC P 11746.
37. Damages
The true test of whether damages may be awarded by a federal District Court on the basis of state law for injuries caused by a union's peaceful conduct is not merely the question whether the conduct is arguably protected or arguably prohibited by federal law, but rather it is whether the application of state law would operate to frustrate the purpose of the federal legislation. Teamsters, Chauffeurs & Helpers Union v Morton (1964) 377 US 252, 12 L Ed 2d 280, 84 S Ct 1253, 56 BNA LRRM 2225, 49 CCH LC P 19000.
A Federal District Court has no power on the basis of state law to award damages to an employer for a union's conduct in persuading the employer's customer not to do business with him during a strike, as such peaceful persuasion is permissible under 29 USCS § 187. Teamsters, Chauffeurs & Helpers Union v Morton (1964) 377 US 252, 12 L Ed 2d 280, 84 S Ct 1253, 56 BNA LRRM 2225, 49 CCH LC P 19000.
2. Torts
38. Generally
Federal labor law, by condemning certain union conduct as an unfair labor practice, does not preclude a state court from entertaining an employer's common-law tort action for damages predicated upon the same conduct. United Constr. Workers v Laburnum Constr. Corp. (1954) 347 US 656, 98 L Ed 1025, 74 S Ct 833, 34 BNA LRRM 2229, 26 CCH LC P 68460.
Congress has not given the NLRB such exclusive jurisdiction over the subject matter of a common-law tort action for damages as to preclude an appropriate state court from hearing and determining its issues whenever such conduct constitutes an unfair labor practice under the federal statute. International Union, United Auto., etc. v Russell (1958) 356 US 634, 2 L Ed 2d 1030, 78 S Ct 932, 42 BNA LRRM 2142, 34 CCH LC P 71546, reh den (1958) 357 US 944, 2 L Ed 2d 1558, 78 S Ct 1379; United Constr. Workers v Laburnum Constr. Corp. (1954) 347 US 656, 98 L Ed 1025, 74 S Ct 833, 34 BNA LRRM 2229, 26 CCH LC P 68460.
There is nothing inconsistent in holding that an employee may recover lost wages as damages in a tort action against a union under state law and also holding that the award of such damages is not necessary to effectuate the purposes of the amended National Labor Relations Act (29 USCS §§ 141 et seq.). International Union, United Auto., etc. v Russell (1958) 356 US 634, 2 L Ed 2d 1030, 78 S Ct 932, 42 BNA LRRM 2142, 34 CCH LC P 71546, reh den (1958) 357 US 944, 2 L Ed 2d 1558, 78 S Ct 1379.
A union could not enjoin an employee member from bringing a tort action against the union in a state court seeking damages for allegedly tortious action, where the subject matter of the dispute involved no unfair labor practice, or labor dispute between union and employer, since the NLRB would not be empowered to afford money damages, reinstatement of employment not being sought. International Union, United Auto, etc. v Hinz (1955, CA6 Mich) 218 F2d 664, 35 BNA LRRM 2551, 27 CCH LC P 69042.
Cause of action, directed against individual defendants as officers and representatives of labor organization, alleging activities which, if proved, would constitute tort under applicable state law would be dismissed for lack of jurisdiction where activities set forth were arguably subject to 29 USCS § 158, but such dismissal would be without prejudice to right of plaintiff to file amendment making claim against one of defendants as individual only and not as representative of labor organization. Pennsylvania Tidewater Dock Co. v National Maritime Union (1962, ED Pa) 206 F Supp 764, 50 BNA LRRM 2661, 45 CCH LC P 17727.
Claim of conspiracy to deprive employees of rights under collective bargaining agreement is pre-empted by federal labor law. Creamer v General Teamsters Local Union 326 (1984, DC Del) 579 F Supp 1284, 117 BNA LRRM 2654.
While National Labor Relations Act preempts state jurisdiction of simple claims for wrongful discharge on account of collective bargaining activities, state court may entertain action for money damages predicated on "outrageous" employer conduct amounting to tort by statute or common law; plaintiffs seeking to avoid preemption of their state law claims must affirmatively plead and prove conduct which goes well beyond mere discrimination in employment practices, so that allegations that employer threatened employees after learning of union organizing activities, and then discharged them following threats are insufficient to avoid federal preemption of state law claim. Mobley v Southern Plasma Corp. (1979, Fla App D1) 366 So 2d 480, 100 BNA LRRM 2963, 85 CCH LC P 55170.
State jurisdiction exists in labor disputes where tortious or unlawful acts are claimed calling for exercise of police power. Langrehr v United Brotherhood of Carpenters & Joiners (1975, Iowa) 236 NW2d 339, 91 BNA LRRM 2318.
Employee's claim against employer and disability insurance plan administrator alleging bad faith handling of disability claim does not constitute breach of contract claim but is separate and independent tort action, notwithstanding that duty owed to employee initially arose because of insurance being provided through labor agreement. Lueck v Aetna Life Ins. Co. (1984) 116 Wis 2d 559, 342 NW2d 699, 115 BNA LRRM 3002, 100 CCH LC P 10794 (superseded by statute on other grounds as stated in Jadofsky v Iowa Kemper Ins. Co. (1984, App) 120 Wis 2d 494, 355 NW2d 550) and revd (1985) 471 US 202, 85 L Ed 2d 206, 105 S Ct 1904, 6 EBC 1305, 1 BNA IER Cas 541, 118 BNA LRRM 3345, 102 CCH LC P 11395.
Maryland court had jurisdiction to entertain common-law tort action even though certain of allegedly tortious acts were found previously by National Labor Relations Board to be unfair labor practices under 29 USCS § 160. Solo Cup Co. v International Brotherhood of Pulp, etc., Workers (1964) 237 Md 143, 205 A2d 213, 57 BNA LRRM 2645, cert den (1965) 380 US 976, 14 L Ed 2d 271, 85 S Ct 1339, 59 BNA LRRM 2064, 51 CCH LC P 51306.
Discharged employees' state court action, which alleged fraud, deceit, misrepresentation and breach of contract against employe, was not preempted, since NLRB had specifically rejected jurisdiction with respect to claim against employer, and plaintiffs' tort claims would not impinge on federal scheme of labor management relations. Thorne v McLean Trucking Co. (1993, Ten App) 145 BNA LRRM 2307, cert den (US) 127 L Ed 2d 216, 114 S Ct 923, 145 BNA LRRM 2320.
39. Infliction of emotional distress
Federal law does not preempt tort action brought in state court by union member against union and its officials alleging that defendants had intentionally engaged in outrageous conduct, threats, and intimidations causing union member to suffer grievous emotional distress resulting in bodily injury--which asserted tortious activity arose in connection with union's alleged discrimination in referring employment to member through union's hiring hall--since (1) in view of absence of any provision of National Labor Relations Act protesting "outrageous" conduct complained of, permitting exercise of state jurisdiction over action does not result in state regulation of federally protected conduct, (2) state has substantial interest in protecting its citizens from outrageous conduct complained of, which interest is no less worthy of recognition because it concerns protection from emotional distress caused by outrageous conduct, rather than protection from physical injury, or damage to reputation, (3) risk that action will touch area of primary federal concern does not outweigh state's interest in protecting its citizens, in that state court would not have to consider or resolve whether union discriminated or threatened to discriminate against employee in terms of employment opportunities, but could adjudicate tort action without resolution of merits of underlying labor dispute and without reference to any accommodation of special interests of unions and members in hiring hall context, and (4) state law is understood to permit recovery only for emotional distress sustained as result of "outrageous" conduct. Farmer v United Brotherhood of Carpenters & Joiners (1977) 430 US 290, 51 L Ed 2d 338, 97 S Ct 1056, 94 BNA LRRM 2759, 81 CCH LC P 13056, on remand (1977, Cal App) 96 BNA LRRM 3314.
Claim for emotional distress is pre-empted by federal labor law where it arises from labor-management dispute. Choate v Louisville & N. R. Co. (1983, CA7 Ill) 715 F2d 369, 114 BNA LRRM 2349, 98 CCH LC P 10417.
State tort claim for intentional infliction of emotional distress arising from international union's failure to intervene in member's behalf when local refused to reinstate his union card is pre-empted by National Labor Relations Act (29 USCS §§ 141 et seq.). Carter v Sheet Metal Workers' International Asso. (1984, CA11 Ga) 724 F2d 1472, 115 BNA LRRM 2924, 100 CCH LC P 10810, cert den (1984) 469 US 831, 83 L Ed 2d 61, 105 S Ct 119, 117 BNA LRRM 2552, 101 CCH LC P 11195.
Discharged employees' suit against employer for intentional and negligent infliction of emotional distress based upon their wrongful discharge is pre-empted by Federal Labor Law. Stanton v Texaco, Inc. (1982, CD Cal) 113 BNA LRRM 2731, 96 CCH LC P 14175.
State tort claim for infliction of emotional distress, arising from employer's going to employee's home and accusing her of feigning job-related injuries, is not pre-empted by federal labor law. Collins v General Time Corp. (1982, ND Ala) 549 F Supp 770, 113 BNA LRRM 2234, 97 CCH LC P 10183.
Although court may retain jurisdiction of employee's pendent tort claim of infliction of emotional distress following dismissal of related breach of duty of fair representation claim, where it is based on statements and acts intimately linked with unfair labor practices, pre-emption doctrine applies. Spielmann v Anchor Motor Freight, Inc. (1982, SD NY) 551 F Supp 817, 112 BNA LRRM 3426, 99 CCH LC P 10650.
Union member's intentional infliction of emotional distress claim against union is preempted under federal labor law where it arises from breach of collective bargaining agreement. Bell v Union Carbide Corp. (1984, ED Tenn) 582 F Supp 824.
40. Interference with rights under collective bargaining agreement by union
Regardless of otherwise applicable pre-emption standards, a union member may sue his union under 29 USC § 185 in state court to redress union interference with rights conferred on individual employees under a collective bargaining agreement. Amalgamated Asso. of Street, etc. v Lockridge (1971) 403 US 274, 29 L Ed 2d 473, 91 S Ct 1909, 77 BNA LRRM 2501, 65 CCH LC P 11805, reh den (1971) 404 US 874, 30 L Ed 2d 120, 92 S Ct 24 and on remand (1971) 94 Idaho 475, 491 P2d 739, 79 BNA LRRM 2410.
LMRA does not preempt action by employer against local union for tortious interference with collective bargaining contract; unions do not enjoy general preemption of state tort law remedies. Wilkes-Barre Pub. Co. v Newspaper Guild of Wilkes-Barre (1981, CA3 Pa) 647 F2d 372, 107 BNA LRRM 2312, 91 CCH LC P 12682, cert den (1982) 454 US 1143, 71 L Ed 2d 295, 102 S Ct 1003, 109 BNA LRRM 2304, 92 CCH LC P 13136 and on remand (1982, MD Pa) 559 F Supp 875, 113 BNA LRRM 3409, 99 CCH LC P 10567.
Plaintiff's state court suit against union for tort of abusive discharge or tortious interference with contract and advantageous economic relations based upon allegation that Union retaliated against plaintiff for refusing to cooperate with union's improper preferential hiring and scheduling demands is not pre-empted by 29 USCS § 141 because plaintiff has claim pending before NLRB that Union's strike threats against plaintiff's employer constitute unfair labor practice. Sherman v St. Barnabas Hospital (1982, SD NY) 535 F Supp 564, 115 BNA LRRM 5133.
41. Wrongful death
Wrongful death action against union in state court was not preempted by National Labor Relations Act (29 USCS §§ 151 et seq) where plaintiffs alleged liability of union for death of miner as result of union's negligence in administering mine safety program. Dunbar v United Steelworkers of America (1979) 100 Idaho 523, 602 P2d 21, 103 BNA LRRM 2434, 88 CCH LC P 11982, cert den (1980) 446 US 983, 64 L Ed 2d 839, 100 S Ct 2963, 104 BNA LRRM 2431, 89 CCH LC P 55273.
42. Negligence
Member of union may not maintain action under 29 USCS § 185 against union for alleged negligent inspection of work area, notwithstanding contention that union assumed contractual duty to inspect work duty under collective bargaining agreement, where pleadings essentially allege common-law tort arising from employee's injuries, and only relation collective bargaining agreement has to cause of action is to determine scope of union's duty. Szatkowski v Turner & Harrison, Inc. (1982, SD NY) 109 BNA LRRM 2609, 95 CCH LC P 13882.
Union member's claim against union for negligence based on union's failure to prevent job injury is preempted where any duty union had arose from safety and health provisions in collective bargaining agreement. Curran v International Union, Oil, etc. (1984, WD NY) 582 F Supp 420.
43. Interference with contractual rights
NLRA (29 USCS §§ 151 et seq.) does not pre-empt breach of contract action against employer brought in state court by strike replacements who were displaced by reinstated strikers after having been offered and accepted jobs on permanent basis and assured that they would not be fired to accommodate returning strikers. Belknap, Inc. v Hale (1983) 463 US 491, 77 L Ed 2d 798, 103 S Ct 3172, 113 BNA LRRM 3057, 97 CCH LC P 55394.
Absent evidence of violence, state law regarding tortious interference with contractual relations is displaced in private damage actions based on secondary activities. Iodice v Calabrese (1975, CA2 NY) 512 F2d 383, 88 BNA LRRM 3042, 76 CCH LC P 10715, on remand (1976, SD NY) 409 F Supp 389, 91 BNA LRRM 2858, 79 CCH LC P 11592, affd (1976, CA2 NY) 538 F2d 310, 93 BNA LRRM 2336.
Action under state law of tortious interference with contract may not be maintained against employer for collective bargaining violations, since it is pre-empted by federal labor law. Re Sewell (1982, CA4 NC) 690 F2d 403, 111 BNA LRRM 2473, 95 CCH LC P 13801.
Charge of tortious interference with labor contract is pre-empted under Federal labor law. Oil, Chemical & Atomic Workers Union Local 1-1978 v Standard Oil Co. (1982, WD Wash) 112 BNA LRRM 2108, 96 CCH LC P 14190.
Federal law does not preempt state court jurisdiction of suit alleging malicious interference with plaintiff's employment solely as supervisor for employers' association and unrelated to any possible legitimate union objective. Davenport v Terry (1975) 134 NJ Super 88, 338 A2d 815, 89 BNA LRRM 2456, 77 CCH LC P 10895.
In general, NLRA grants exclusive jurisdiction over labor disputes to NLRB and preempts state and federal court jurisdiction to remedy conduct that is arguable protected or prohibited by NLRA, but preemption is inappropriate when conduct at issue is only peripheral federal concern under Act or if it involves significant state interest that outweights NLRB's interest; thus, state court action brought by agricultural laborers for interference with concerted activities for purposes of collective bargaining under state law, and for wrongful discharge contrary to clear mandate of public policy, was not preempted, because agricultural laborers, who are explicitly excluded from NLRA's definition of employee, are not subject to NLRB's jurisdiction. Bravo v Dolsen Cos. (1993) 71 Wash App 769, 862 P2d 623, 145 BNA LRRM 2148.
44. Defamation
A state's concern with redressing malicious libel is so deeply rooted in local feeling and responsibility that a state remedy for defamation arising during a labor dispute is not pre-empted by the NLRA. Linn v United Plant Guard Workers (1966) 383 US 53, 15 L Ed 2d 582, 86 S Ct 657, 61 BNA LRRM 2345, 53 CCH LC P 11061.
Where either party to a labor dispute circulates false and defamatory statements during a union-organizing campaign, the court has jurisdiction to apply state remedies if complainant pleads and proves that the statements were made with malice--that is, with knowledge of their falsity, or with reckless disregard of whether they were true or false--and caused him injury. Linn v United Plant Guard Workers (1966) 383 US 53, 15 L Ed 2d 582, 86 S Ct 657, 61 BNA LRRM 2345, 53 CCH LC P 11061.
Federal labor law supersedes state law with respect to libels published during labor disputes in cases which entail accommodation of federal interest in uniform regulation of labor relations with traditional concern and responsibility of the states to protect their citizens against defamatory attacks. Linn v United Plant Guard Workers (1966) 383 US 53, 15 L Ed 2d 582, 86 S Ct 657, 61 BNA LRRM 2345, 53 CCH LC P 11061.
Libel action does not involve, directly or indirectly, labor relations, and right of collective bargaining granted to union by 29 USCS § 157 does not preclude action by union officer for libel against officer of employer for alleged slanderous remarks made during collective bargaining session. Brantley v Devereaux (1965, DC SC) 237 F Supp 156, 58 BNA LRRM 2293, 51 CCH LC P 51265.
Libel action against union members for statements made during labor dispute may not be maintained where activities of members are arguably protected by 29 USCS § 157 and are therefore subject to jurisdiction of NLRB. Sullivan v Day Publishing Co. (1965, DC Conn) 239 F Supp 677, 58 BNA LRRM 2711, 58 BNA LRRM 2863, 51 CCH LC P 19602.
Exclusivity of NLRB jurisdiction did not pre-empt state court jurisdiction of complaint alleging misrepresentations to prevent terminated employee from obtaining other employment. Breitegger v Columbia Broadcasting System, Inc. (1974, 2nd Dist) 43 Cal App 3d 283, 117 Cal Rptr 699, 88 BNA LRRM 2600.
Exceptions to rule of federal presumption are (1) where conduct focuses on purely internal matters not having direct and immediate effect on employment; (2) where Congress has affirmatively indicated that state jurisdiction exists, as in 29 USCS § 185, dealing with enforcement of collective bargaining agreements; (3) where it cannot be conscientiously presumed that Congress meant to intrude so deeply into areas traditionally left to local law, such as to preempt recovery for malicious defamation or to preempt prevention of violence; and (4) where the particular rule of law sought to be invoked is so structured and administered that, in virtually all instances, it is safe to presume that judicial supervision will not disserve interests promoted by federal labor statutes, as for example enforcement of implied covenant of fair representation. Writers' Writers' Guild of America West, Inc. v Superior Court of Los Angeles County (1975, 2nd Dist) 53 Cal App 3d 468, 126 Cal Rptr 498, 91 BNA LRRM 2603, 80 CCH LC P 12030.
State court jurisdiction is not preempted by federal law insofar as complaint alleges libel or slander and damages resulting therefrom. Davenport v Terry (1975) 134 NJ Super 88, 338 A2d 815, 89 BNA LRRM 2456, 77 CCH LC P 10895.
State defamation actions are not per se preempted by National Labor Relations Act, 29 USCS § 141, but, if defamation action involves conduct which is arguably unfair labor practice as well, state court may assume jurisdiction only in those instances in which complainant can show that defamatory statements were circulated with malice and caused him damage; state court may assume jurisdiction over defamation actions (1) if malice is established, (2) if state tort is either unrelated to employment discrimination regulated by federal act or function of particular manner in which discrimination occurs, rather than function of actual or threatened discrimination itself, and (3) if jury is instructed to separate evidence of employment discrimination from issues of tort liability if evidence of employment discrimination is necessary to establish context in which tort claim arises. Henderson v Teamsters, Chauffeurs, etc. (1978) 90 Wash 2d 666, 585 P2d 147, 99 BNA LRRM 3472, 88 CCH LC P 55219, 100 ALR3d 539.
Action by lathing contractor against local union's executive board, charging defamation in that officers of union had slandered him by charging that "he was unfair," was arguably labor dispute and was exclusively within jurisdiction of National Labor Relations Board and not within jurisdiction of state courts. Oss v Birmingham (1965) 97 Ariz 242, 399 P2d 655, 58 BNA LRRM 2754, 51 CCH LC P 19566.
Union may not be enjoined from distributing alleged libelous circular during organizing campaign where NLRB has tentatively taken jurisdiction of dispute and union's action is arguably permissible under 29 USCS § 157. Chauffeurs, Teamsters & Helpers Local No. 150, etc. v Superior Court of Sacramento County (1964, 3rd Dist) 228 Cal App 2d 452, 39 Cal Rptr 590, 50 CCH LC P 19184.
State court lacks jurisdiction over libel action by union officers against officers of independent union, relating to activities by plaintiff in getting signatures for representation elections, since such activities are arguably subject to jurisdiction of NLRB. Hall v Sperry Gyroscope Co. (1958) 14 Misc 2d 547, 178 NYS2d 929, 35 CCH LC P 71887, affd (1959, 1st Dept) 7 App Div 2d 385, 182 NYS2d 323.
Right of free speech is protected by 29 USCS § 157, and union official is not subject to state court action for libel because of statements made during contract negotiations. Schnell Tool & Die Corp. v United Steelworkers of America (1964, CP) 30 Ohio Ops 2d 318, 94 Ohio L Abs 231, 200 NE2d 727, 55 BNA LRRM 2945, 56 BNA LRRM 2163.
State court was not precluded from exercising jurisdiction over libel action arising from activities arguably subject to 29 USCS §§ 157 and 158. Meyer v Joint Council, I. B. T., C., W. & H. (1965) 416 Pa 401, 206 A2d 382, 58 BNA LRRM 2183, 51 CCH LC P 51239, cert dismd (1965) 382 US 897, 15 L Ed 2d 154, 86 S Ct 193, 60 BNA LRRM 2335, 52 CCH LC P 51406.
There was no federal preemption of former local union official's claims that international union had defamed him in communications to members of local, even though defendant international argued that state court jury had erroneously considered important issues of fact that already had been determined by NLRB in underlying unfair labor practice case. Batson v Shiflett (1991) 86 Md App 340, 586 A2d 792, 124 CCH LC P 57181, cert gr (1991) 323 Md 115, 591 A2d 506 and affd in part and revd in part on other grounds (1992) 325 Md 684, 602 A2d 1191.
3. Union Conduct
45. Unfair labor practices, generally
Jurisdiction of a state employment relations board to enjoin practices forbidden by state law is not ousted, merely because the NLRB has once held an election under 29 USCS § 159 and has certified a union as bargaining representative of the employees. Algoma Plywood & Veneer Co. v Wisconsin Employment Relations Bd. (1949) 336 US 301, 93 L Ed 691, 69 S Ct 584, 23 BNA LRRM 2402, 16 CCH LC P 65013.
A state may not enjoin under its own labor statute conduct which has been made an unfair labor practice under the federal labor relations acts. Weber v Anheuser-Busch, Inc. (1955) 348 US 468, 99 L Ed 546, 75 S Ct 480, 35 BNA LRRM 2637, 27 CCH LC P 69064.
A state court, as well as a federal court, should decline jurisdiction to enjoin union conduct which may constitute an unfair labor practice within the Labor Management Relations Act, the exclusive primary jurisdiction being in the NLRB. Weber v Anheuser-Busch, Inc. (1955) 348 US 468, 99 L Ed 546, 75 S Ct 480, 35 BNA LRRM 2637, 27 CCH LC P 69064.
A state labor relations board has no power to enjoin an employer whose business affects interstate commerce from engaging in unfair labor practices prohibited by the federal act, even though the NLRB has declined to issue a complaint because the employer's operations were predominantly local in character. Guss v Utah Labor Relations Bd. (1957) 353 US 1, 1 L Ed 2d 601, 77 S Ct 598, 39 BNA LRRM 2567, 32 CCH LC P 70563.
Power to prevent unfair labor practices is vested by Congress in National Labor Relations Board alone. NLRB v Prettyman (1941, CA6) 117 F2d 786, 7 BNA LRRM 469, 3 CCH LC P 60281; Devon Knitwear Co. v Levinson (1940) 173 Misc 779, 19 NYS2d 102, 6 BNA LRRM 1089, 6 BNA LRRM 1104, 2 CCH LC P 18628.
Jurisdiction of bankruptcy court does not embrace power to treat with debtor's unfair labor practices which affect commerce, and such court's leave to National Labor Relations Board to proceed in appropriate manner is not required. NLRB v Baldwin Locomotive Works (1942, CA3) 128 F2d 39, 10 BNA LRRM 446, 10 BNA LRRM 632, 5 CCH LC P 60997, 5 CCH LC P 61082.
Where question between union and employer is whether one or other has been guilty of unfair labor practice and there are no substantial contract violations involved, exclusive jurisdiction for settlement of such dispute rests with National Labor Relations Board. Portland Web Pressmen's Union v Oregonian Publishing Co. (1960, CA9 Or) 286 F2d 4, 47 BNA LRRM 2432, 41 CCH LC P 16713, cert den (1961) 366 US 912, 6 L Ed 2d 237, 81 S Ct 1086, 48 BNA LRRM 2071.
If claims are even arguably unfair labor practices, both federal and state courts must decline jurisdiction in favor of NLRB. Connell v United States Steel Corp. (1975, CA5 Ala) 516 F2d 401, 89 BNA LRRM 3089, 77 CCH LC P 11019.
California Agricultural Labor Relations Board, which administers state statute that is similar to NLRA but applies only to agricultural employees excluded from NLRA coverage, cannot regulate conduct that is arguably protected or prohibited under NLRA. Bud Antle, Inc. v Barbosa (1994, CA9 Cal) 35 F3d 1355, 94 CDOS 6954, 94 Daily Journal DAR 12755, 147 BNA LRRM 2285, 128 CCH LC P 11172.
NLRB has exclusive jurisdiction of unfair labor practice cases though 1947 amendment omitted word "exclusive." Born v Cease (1951, DC Alaska) 101 F Supp 473, 29 BNA LRRM 2400, 20 CCH LC P 66461, affd (1954, CA9 Alaska) 213 F2d 407, 34 BNA LRRM 2244, 25 CCH LC P 68346, reh den (1954, CA9 Alaska) 214 F2d 349, 34 BNA LRRM 2515, 26 CCH LC P 68597 and cert den (1954) 348 US 855, 99 L Ed 674, 75 S Ct 80, 34 BNA LRRM 2898, reh den (1955) 348 US 932, 99 L Ed 730, 75 S Ct 336.
State court would have no power to enjoin labor activities on ground that they might induce employer against whom they are directed to commit unfair labor practice, for only National Labor Relations Act can determine what constitutes an unfair labor practice under National Labor Relations Act and take steps to prevent it. Park & Tilford Import Corp. v International Brotherhood of Teamsters, etc. (1944, Cal) 155 P2d 16, 15 BNA LRRM 872, 9 CCH LC P 62481, subsequent op on reh (1946) 27 Cal 2d 599, 165 P2d 891, 17 BNA LRRM 807, 10 CCH LC P 62963, 162 ALR 1426.
Elimination of words "this power shall be exclusive" from subsec. (a) of 29 USCS § 160 when act was amended by Labor Management Relations Act of 1947 (29 USCS §§ 141 et seq.) did not have effect of giving state court jurisdiction to provide remedy for unfair labor practices in direct proceedings. McNish v American Brass Co. (1952) 139 Conn 44, 89 A2d 566, 30 BNA LRRM 2254, 21 CCH LC P 67037, cert den (1953) 344 US 913, 97 L Ed 704, 73 S Ct 336, 31 BNA LRRM 2232.
Where evidence supported findings of fact which established that unfair labor practices in violation of Labor Management Relations Act had been committed, admission by nonunion employees in action for injunctive relief against union that their employer's business affected (interstate) commerce disclosed exclusive jurisdiction over such unfair labor practice to be in National Labor Relations Board, and state court's assertion of state jurisdiction by granting injunction was error. Stieben v Constructive & General Laborers Local Union (1957) 181 Kan 832, 317 P2d 436, 41 BNA LRRM 2219, 33 CCH LC P 71048.
The enactment of this act (29 USCS §§ 141 et seq.) did not preclude state legislature from enacting a statute on the same general subject and creating an agency for the enforcement of the state statute, regardless of how specifically the practice may be defined in the federal act, and the state agency may take jurisdiction of proceedings to enforce the state act unless there is conflict between the two acts; the state agency has jurisdiction to entertain and decide under the state act all cases of unfair labor practices, at least until the national labor relations board has taken jurisdiction of the particular controversy; and the state agency could take jurisdiction of an unfair labor practice controversy, although the NLRB had assumed jurisdiction to supervise an election at which the employees of the company chose respondent union as their bargaining agent. International Union, etc. v Wisconsin Employment Relations Bd. (1944) 245 Wis 417, 14 NW2d 872, 14 BNA LRRM 771, 8 CCH LC P 62200, reh den (1944) 245 Wis 438a, 15 NW2d 873, 15 BNA LRRM 629, 8 CCH LC P 62375 and cert dismd (1945) 324 US 884, 89 L Ed 1434, 65 S Ct 685.
46. --Particular activities
An order by a state employment relations board issued under a state employment peace act, requiring striking employees to cease and desist from certain activities declared to be unfair labor practices under the state act, such as picketing another employee's domicil, injuring the person or property of such employee or his family, or coercing such employee in any kind of pursuit of any lawful employment, is not void as being repugnant to the provisions of the National Labor Relations Act where such order does not affect the status of the strikers as employees or impair in any respect the right guaranteed and protected by the Federal Act. Allen-Bradley, etc. v Wisconsin Employment Relations Bd. (1942) 315 US 740, 86 L Ed 1154, 62 S Ct 820, 10 BNA LRRM 520, 5 CCH LC P 51135.
Federal law preempts state court jurisdiction of suit by employees against union for sanctioning illegal strike and serving faulty notice on employer calling for modification of collective bargaining agreement instead of termination. Abraham v International Union, United Auto., etc. (1974, 1st Dist) 19 Ill App 3d 1008, 313 NE2d 209, 86 BNA LRRM 2925.
State employment relations board had jurisdiction to entertain complaint of employer as to type of picketing, intimidation of employees, and other coercive activities of union and its officers, agents, and members, and state circuit court had jurisdiction to grant board's petition for enforcement of its order. Wisconsin Employment Relations Board v United Auto., etc. (1955) 269 Wis 578, 70 NW2d 191, 36 BNA LRRM 2109, 28 CCH LC P 69191, affd (1956) 351 US 266, 100 L Ed 1162, 76 S Ct 794, 38 BNA LRRM 2165, 30 CCH LC P 70000.
47. Violence
The NLRA does not place violent union conduct beyond state criminal power. United Auto., etc. v Wisconsin Employment Relations Bd. (1956) 351 US 266, 100 L Ed 1162, 76 S Ct 794, 38 BNA LRRM 2165, 30 CCH LC P 70000.
That a union commits a federal unfair labor practice while engaging in violent conduct does not prevent a state from taking steps to stop violence. United Auto., etc. v Wisconsin Employment Relations Bd. (1956) 351 US 266, 100 L Ed 1162, 76 S Ct 794, 38 BNA LRRM 2165, 30 CCH LC P 70000.
While states are allowed to grant compensation for consequences of conduct marked by violence and imminent threat to public order, as defined by traditional state torts law, even the states' salutary effort to redress private wrongs or grant compensation for lost time cannot be exerted to regulate activities that are potentially subject to the exclusive federal regulatory scheme. San Diego Bldg. Trades Council v Garmon (1959) 359 US 236, 3 L Ed 2d 775, 79 S Ct 773, 43 BNA LRRM 2838, 37 CCH LC P 65367.
Where the consequences of peaceful and violent conduct are separable, recovery under state law may be had only for the latter, and it is essential to focus attention upon violence or threats of violence as a predicate of any recovery awarded to avoid conflict with federal law. United Mine Workers v Gibbs (1966) 383 US 715, 16 L Ed 2d 218, 86 S Ct 1130, 61 BNA LRRM 2561, 53 CCH LC P 11135, 10 FR Serv 2d 361.
Employees, who in conducting strike engaged in strong-arm methods against alleged strike breakers, were not entitled to an injunction against prosecution under Hawaiian statutes on the ground that such prosecution interfered with their right to collective bargaining under National Labor Relations Act (29 USCS §§ 151 et seq.), since acts charged were not in reference to any collective bargaining agreement, but were the result of an attempt to act as policemen, which right solely belonged to the state. Ackerman v International Longshoremen's & Warehousemen's Union (1951, CA9 Hawaii) 187 F2d 860, 27 BNA LRRM 2474, 19 CCH LC P 66221, cert den (1951) 342 US 859, 96 L Ed 646, 72 S Ct 85, 28 BNA LRRM 2658.
Congress did not exclude state jurisdiction in cases involving violence. Irving Subway Grating Co. v Silverman (1953, DC NY) 117 F Supp 671, 33 BNA LRRM 2293, 33 BNA LRRM 2299, 24 CCH LC P 68030.
Labor Management Relations Act does not deprive state courts of jurisdiction where injunctive relief is invoked under state labor relations act to prevent violence. McQuay v International Union, U. A. W., C. I. O. (1955) 245 Minn 274, 72 NW2d 81, 36 BNA LRRM 2446, 28 CCH LC P 69373, affd (1956) 351 US 959, 100 L Ed 1481, 76 S Ct 1024, 38 BNA LRRM 2211, 30 CCH LC P 70001.
Where violence in addition to an unfair labor practice in involved in a strike, an injunction pendente lite was granted the employer to maintain a status quo situation until the NLRB acts. Art Steel Co. v Velazquez (1952) 280 App Div 76, 111 NYS2d 198, 29 BNA LRRM 2647, 21 CCH LC P 66842.
There is nothing in this act which interferes with the right of a state to exercise its traditional police power to suppress violence, to prevent breaches of the peace, to prevent an employer and his employees from being intimidated by violence or the threat of violence, or to protect property and to safeguard its lawful use during a strike or labor dispute. Erwin Mills, Inc. v Textile Workers Union (1951) 234 NC 321, 67 SE2d 372, 29 BNA LRRM 2092, 20 CCH LC P 66625.
National Labor Relations Act (29 USCS §§ 151 et seq.) was not designed to deprive an employer or his employees of the common-law right of action in a state court for acts of violence or intimidation which may constitute unfair labor practices. United Const. Workers v Laburnum Const. Corp. (1953) 194 Va 872, 75 SE2d 694, 32 BNA LRRM 2470, 23 CCH LC P 67542, affd (1954) 347 US 656, 98 L Ed 1025, 74 S Ct 833, 34 BNA LRRM 2229, 26 CCH LC P 68460.
48. --Threats
While the NLRB is empowered to forbid a strike when its purpose is one that federal labor law makes illegal, it has been given no power to forbid one because its method is illegal--even if the illegality were to consist of actual or threatened violence to persons or destruction of property--as policing of such conduct is left wholly to the states. International Union, U. A. W. A. v Wisconsin Employment Relations Bd. (1949) 336 US 245, 93 L Ed 651, 69 S Ct 516, 23 BNA LRRM 2361, 16 CCH LC P 64992, reh den (1949) 336 US 970, 93 L Ed 1121, 69 S Ct 935 and (ovrld on other grounds by International Asso. of Machinists & Aerospace Workers v Wisconsin Employment Relations Com. (1976) 427 US 132, 49 L Ed 2d 396, 96 S Ct 2548, 92 BNA LRRM 2881, 78 CCH LC P 11476).
A state court may entertain an action for damages brought by a contractor against labor unions alleging that the union threatened the contractor and its employees with violence in an attempt to compel employee membership, and alleging that plaintiff was compelled to abandon all projects in the area. United Constr. Workers v Laburnum Constr. Corp. (1954) 347 US 656, 98 L Ed 1025, 74 S Ct 833, 34 BNA LRRM 2229, 26 CCH LC P 68460.
While a state may not, in furtherance of its public policy, enjoin conduct which has been made an unfair labor practice under Federal Labor Relations Act, this general rule does not take from states the power to prevent mass picketing, violence, and overt threats of violence. United Auto., etc. v Wisconsin Employment Relations Bd. (1956) 351 US 266, 100 L Ed 1162, 76 S Ct 794, 38 BNA LRRM 2165, 30 CCH LC P 70000.
A state court has power, at the instance of an employer engaged in interstate commerce, to enjoin striking employees and union representatives co-operating with them from threatening violence against, or provoking violence on the part of, any of the officers, agents, or employees of the employer, and from obstructing the free use of the street adjacent to the employer's place of business, and the free ingress and egress of that place, where it is shown that the strikers engaged in loud and offensive name-calling and other conduct directed at workers, calling them "scabs" and similar names, in view of the likelihood that such conduct and language was likely to provoke physical violence. Youngdahl v Rainfair, Inc. (1957) 355 US 131, 2 L Ed 2d 151, 78 S Ct 206, 41 BNA LRRM 2169, 33 CCH LC P 71120.
Congress, in enacting the National Labor Relations Act, as amended has not, by authorizing the National Labor Relations Board to award partial relief to one who has been the victim of mass picketing and threats of violence by a union, deprived such person of common-law rights of action for all the damages suffered. International Union, United Auto., etc. v Russell (1958) 356 US 634, 2 L Ed 2d 1030, 78 S Ct 932, 42 BNA LRRM 2142, 34 CCH LC P 71546, reh den (1958) 357 US 944, 2 L Ed 2d 1558, 78 S Ct 1379.
State interest in preventing conduct marked by violence and imminent threats to public order is compelling, and such conduct may be enjoined by state courts since federal labor legislation gives no colorable protection to violent and coercive conduct incident to a labor dispute. Brotherhood of R. Trainmen v Jacksonville Terminal Co. (1969) 394 US 369, 22 L Ed 2d 344, 89 S Ct 1109, 70 BNA LRRM 2961, 59 CCH LC P 13362, reh den (1969) 394 US 1024, 23 L Ed 2d 51, 89 S Ct 1622.
State court may entertain suit to enjoin picketing without entering pre-empted zone where violent acts and threats are so enmeshed with picketing that injunction against picketing is necessary to stop violence. 15 McKay Place Realty Corp. v AFL-CIO, 32B-32J, Service Employees International Union (1983, ED NY) 576 F Supp 1423.
While state courts have no jurisdiction to pass on merits of labor disputes arguably within jurisdiction of NLRB, interest of states is so great where violence and threats of violence are involved that state courts may regulate such conduct. Eads Coal Co. v United Mine Workers (1975, 5th Dist) 27 Ill App 3d 692, 327 NE2d 115, 89 BNA LRRM 2654.
Union representative who made threat to effect that cement would be allowed to harden in drums on truck unless employer signed collective bargaining agreement was properly convicted under criminal statute proscribing intimidation. People v Holder (1983, 2d Dist) 119 Ill App 3d 366, 74 Ill Dec 907, 456 NE2d 628, 43 ALR4th 1129, app den (1984, Ill) 76 Ill Dec 505, 458 NE2d 1305 and cert den (1984) 467 US 1241, 82 L Ed 2d 820, 104 S Ct 3511, 116 BNA LRRM 2632, 101 CCH LC P 55471, habeas corpus proceeding (1985, ND Ill) 624 F Supp 68.
National Labor Relations Act does not preempt state court jurisdiction where there is threat of violence and imminent threats to public order. Cliff House Bldg. Corp. v Plumbers Union (1975) 232 Pa Super 533, 336 A2d 339, 88 BNA LRRM 3476.
National Labor Relations Act (29 USCS §§ 151 et seq.) does not deprive state courts of their inherent equitable power to protect the persons and property of its citizens against unlawful conduct, and state court had jurisdiction to enjoin mass picketing in labor dispute by interfering with the free ingress and egress to and from textile plant, by the use of threats, abuse, and violence against employees and others seeking ingress and egress. Williams v Cedartown Textiles, Inc. (1952) 208 Ga 659, 68 SE2d 705, 29 BNA LRRM 2357, 21 CCH LC P 66733.
State courts have jurisdiction independent of the NLRB to award damages for allegedly tortious conduct involving violence or threats during a strike. Local 1511 v Grand Lodge of Free & Accepted Masons (1973) 48 Mich App 11, 209 NW2d 823.
State court could not give effect to portion of state statute authorizing damages for peaceful activities in connection with labor dispute where federal law was applicable, but did have jurisdiction of claim of statutory violation based on violence or threats of violence.